A.O.L., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile defendant appealed a restitution order imposed at a hearing she did not attend and did not waive her right to attend. The court reversed, holding that the trial court violated the defendant's constitutional right to be present at the restitution hearing because it failed to establish a valid waiver of that right by competent, substantial evidence.
The trial court's imposition of restitution in the defendant's absence constituted reversible error because the court failed to establish a valid waiver of the defendant's constitutional right to be present by competent, substantial evidence. The assumption of waiver based merely on an unsworn statement that the defendant and her mother received notice was insufficient.
[1] A defendant has a constitutional right to be present at a restitution hearing.
[2] Imposing restitution on a defendant who was absent from the hearing and did not waive the right to be present is reversible error.
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Join FLexlaw to unlock all legal intelligence“defendants have a constitutional right to be present at a restitution hearing and, if they do not validly waive that right, it is reversible error to conduct the hearing and impose restitution in their absence”
Establishes the fundamental constitutional right at issue and the reversibility standard
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Join FLexlaw to unlock all legal intelligenceA.O.L. pleaded guilty to burglary of an unoccupied dwelling and two counts of second-degree grand theft. Adjudication was withheld and she was placed …
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The sole issue in this appeal is whether the trial court erred when it imposed restitution on a juvenile defendant who was absent from the hearing and who had not waived her right to be present. The State concedes error, and we reverse.
A.O.L. entered a plea of guilty to the delinquent acts of burglary of an unoccupied dwelling and two counts of second-degree grand theft. Adjudication was withheld and she was placed on probation. The victims sought restitution for damage done to their home and for property stolen during the burglary. Although apparently noticed for a restitution hearing, A.O.L. failed to appear; but the homeowners were present, and the trial court decided to go ahead with the hearing in spite of the defense attorney’s objection. The trial court made specific findings on the record about the amount of restitution due to the victims and later memorialized the amounts in a final judgment.1
Both parties have cited settled case law for the proposition that defendants have a constitutional right to be present at a restitution hearing and, if they do not validly waive that right, it is reversible error to conduct the hearing and impose restitution in their absence. See M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So.2d 1233, 1234 (Fla. 2d DCA 2005). This case is virtually identical to C.C.N. v. State, 1 So.3d 1151 (Fla. 2d DCA 2009), in which the trial court failed to inquire about the circumstances of the juvenile’s absence or make any findings concerning whether the juvenile had voluntarily waived the right to be present. As in this case, no sworn evidence demonstrated that the defendant had actually received notice of the restitution hearing. Although a defendant may waive the right to be present and may appear constructively through counsel, the court nevertheless must first “ ‘determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary.’ ” Id. at 1152 (quoting M.W.G., 945 So.2d at 600). The State carries the burden of proving the validity of the juvenile’s waiver by competent, substantial evidence. C.C.N., 1 So.3d at 1152.
The trial court in this case implicitly found that the juvenile had waived her right to be present based on an unsworn statement that A.O.L. and her mother had received notice of the hearing, but the court’s assumption of waiver was not supported by competent, substantial evidence. Accordingly, we must reverse the final judgment of restitution and remand for a new restitution hearing at which A.O.L. must be present. Alternatively, if A.O.L. *677does not attend, the State must demonstrate by competent, substantial evidence that she validly waived her constitutional right to be present.
Reversed and remanded for further proceedings.
CASANUEVA and BLACK, JJ, Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- T.A.S. v. State, 892 So. 2d 1233 (Fla. 2d DCA 2005)
- C.C.N. v. State, 1 So. 3d 1151 (Fla. 2d DCA 2009)