JUAN CARLOS GONZALEZ,

v.

THE STATE OF FLORIDA,

Third District Court of Appeal State of Florida

Opinion filed July 27, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1525 Lower Tribunal Nos. F18-22475 & F19-3572 ________________

Juan Carlos Gonzalez, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de la O, Judge.

George J. Vila, for appellant.

Ashley Moody, Attorney General, and Brian H. Zack and David Llanes, Assistant Attorneys General, for appellee.

Before EMAS, SCALES and BOKOR, JJ.

SCALES, J.

1 On September 16, 2019, Gonzalez pleaded guilty to (i) four counts of aggravated stalking in violation of a court order and one count of strongarmed robbery (lower tribunal case number F18-22475), and (ii) two counts of aggravated stalking in violation of a court order (lower tribunal case number F19-3572). The trial court placed Gonzalez on two years of probation in both cases, including a special probation condition that required Gonzalez not to have any contact with the victim. At the remote hearing, the trial court determined that Gonzalez violated this special condition by sending the victim flowers with a card and by sending threatening texts to the victim through a third party. The trial court then sentenced Gonzalez for the underlying crimes as follows: (i) in F18-22475, to fifteen years in prison for strong-armed robbery, followed by two years of probation for each of the four counts of aggravated stalking – with all counts to run consecutive to each other and consecutive to the sentence imposed in F19-3572; and (ii) in F19- 3572, to five years in prison for one count of aggravated stalking and to two years of probation for the second count of aggravated stalking – with both counts to run consecutive to each other and consecutive to the sentence imposed in F18-22475.

2 The remote hearing conducted below occurred on September 21, 2020, while the Florida Supreme Court’s administrative order temporarily suspending court rules that “limit or prohibit the use of communication equipment for the remote conduct of proceedings” was still in effect. See In re Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Fla. Admin. Order No. AOSC20-23, Amend.⁵ (Aug. 12, 2020).

3 Fundamental error is error “so prejudicial to the defendant’s ability to receive a fair trial that reversal is required even absent a contemporaneous objection.” Louidor v. State, 162 So. 3d 305, 310 (Fla. 3d DCA 2015). “[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994) (quoting State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)).

4 A. The Remote Probation Violation Hearing: Gonzalez’s Rule 3.180, Due Process and Confrontation Clause Claims

As to the trial court’s conducting Gonzalez’s probation violation hearing remotely, this Court’s decision in Clarington v. State, 314 So. 3d 495 (Fla. 3d DCA 2020) squarely addressed and rejected rule 3.180, due process and confrontation clause claims similar to those asserted by Gonzalez. Unlike Gonzalez, though, Clarington made a pre-hearing objection to the trial court conducting Clarington’s probation violation hearing remotely. After the trial court denied Clarington’s objection, Clarington petitioned this Court to prohibit the trial court from conducting the proceedings remotely. We denied Clarington’s prohibition petition, concluding that: (i) “to the extent that rule 3.180 could be construed to limit or prohibit [a] remote probation violation hearing . . . , AOSC 20-23 suspends application of that rule,” Id. at 500; and (ii) because a probation violation hearing is a post-adjudicatory proceeding rather than a “critical stage of trial” or a “criminal prosecution,” Id. at 502, and “[i]n light of the temporary nature of the proposed conduct of remote proceedings at issue here, and balancing the defendant’s interests against

apparent on the face of this record, we decline to address Gonzalez’s ineffective assistance of trial counsel claim in the first instance. See Baxter v. State, 318 So. 3d 601, 604 (Fla. 3d DCA 2021); Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019).

At the conclusion of Gonzalez’s probation violation hearing, after finding Gonzalez had violated the special terms of his probation, the trial court immediately proceeded to sentence Gonzalez for the underlying crimes for which Gonzalez had been put on probation. Gonzalez argues that the trial court fundamentally erred by conducting the sentencing portion of the hearing remotely. We deny Gonzalez’s claims and adopt the reasoning employed by the Fourth District in its recent decision in Brown v. State, 335 So. 3d 123 (Fla. 4th DCA 2022). In Brown, our sister court squarely addressed and rejected

Next, we turn to Gonzalez’s claims that the trial court fundamentally erred by conducting both the violation of probation and sentencing hearing remotely because, Gonzalez asserts, the remote platform abridged Gonzalez’s right to effective assistance of counsel. Specifically, Gonzalez asserts that (i) the general procedures the trial court employed for conducting the subject remote proceeding were fundamentally flawed, and (ii) the technology functioned so poorly throughout the remote proceeding that Gonzalez could not adequately participate in and view the proceeding and consult with his attorney. To protect Gonzalez’s right to counsel during the proceedings, the trial court utilized the Zoom videoconferencing platform’s “breakout room” feature, which enabled Gonzalez and his trial counsel to speak privately during the remote proceeding. The trial court gave Gonzalez permission to raise his hand at any time to signal to the court that he wished to speak to his counsel. During the probation violation aspect of the remote hearing, Gonzalez raised his hand during defense counsel’s cross-examination of the

5 “In addition to allowing for face-to-face confrontation, the Confrontation Clause serves other important interests.” Harrell v. State, 709 So. 2d 1364, 1368 (Fla. 1998). “[T]he Confrontation Clause also ensures (1) that the witness will give the testimony under oath, impressing upon the witness the seriousness of the matter and protecting against a lie by the possibility of penalty of perjury, (2) that the witness will be subject to cross-examination, and (3) that the jury will have the chance to observe the demeanor of the witness, which aids the jury in assessing credibility.” Id.

6 Rodgers v. State, 948 So. 2d 655, 663 (Fla. 2006) (observing, in a capital case, “[a] defendant’s rights under the Confrontation Clause apply to the guilt phase, the penalty phase, and sentencing”); Engle v. State, 438 So. 2d 803, 814 (Fla. 1983) (stating, in a capital case, that the “right of confrontation protected by cross-examination is a right that has been applied to the sentencing process”).

7 Compare Rodgers, 948 So. 2d at 674 (J. Cantero, concurring) (“Virtually every federal appellate court has recently addressed the issue and has reaffirmed the longstanding principle that the Confrontation Clause does not

apply to sentencing.”); Grange v. State, 199 So. 3d 440, 442 (Fla. 4th DCA 2016) (“This Court also has recognized that the Sixth Amendment right of confrontation does not apply in sentencing proceedings.”); Box v. State, 993 So. 2d 135, 137 (Fla. 5th DCA 2008) (“The analysis generally engaged in by courts considering the issue is basically that because the right of confrontation is a trial right, it applies during the guilt or innocence phase of a prosecution, but not to sentencing. Sentencing in the non-capital context is not conceived of as part of the trial. A review of the federal decisions considering this theory reflects virtual unanimous support for this position.”) (citation omitted), with Desue v. State, 908 So. 2d 1116, 1117 (Fla. 1st DCA 2005) (“[W]e assume for purposes of decision that, like the Confrontation Clause it construes, the rule laid down in Crawford [v. Washington, 541 U.S. 36 (2004)] applies at sentencing.”).