Third District Court of Appeal
State of Florida
Opinion filed March 2, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2580
Lower Tribunal No. 12-10721A
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Michel Hernandez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Cristina M.
Miranda, Judge.
Clayton R. Kaeiser, for appellant.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
Before SALTER, FERNANDEZ and LOGUE, JJ.
LOGUE, J.
The defendant appeals on the basis that his sentence was imposed in
absentia. We reverse.
The defendant was charged by information with trafficking cannabis, a first
degree felony, and entered into a plea agreement with the State. The trial court
engaged in a plea colloquy with the defendant, accepted the plea, and entered an
order ratifying the terms of the plea agreement.
In pertinent part, the plea agreement provided:
17. If the defendant violates any of terms of this agreement or fails
to appear for any meetings, interviews, depositions, hearings, grand
juries and trials as required by the State of Florida, the designated
investigating law enforcement agency, or the court, or fails to provide
truthful and complete information and testimony at all such meetings,
interviews, depositions, hearings, grand juries and trials or falsely
implicates any person or entity through false information, then the
parties agree that the State of Florida will not waive any applicable
minimum mandatory sentence or fines and the defendant shall be
sentenced to thirty (30) years in state prison.
18. The State of Florida need only prove any violation of this
agreement to the court by a preponderance of the evidence.
19. The defendant agrees that the State of Florida is authorized to
move this court, on an Ex Parte basis, to revoke the defendant’s
release pending sentencing for any violation of this agreement by the
defendant as well as a reasonable belief that the defendant is a flight
risk. Upon filing of said motion, the Court shall immediately grant
the motion and revoke the defendant’s release. The court shall order
the defendant to be held without bond pending sentencing and issue
an alias capias for the defendant’s arrest.
20. If the defendant willingly[1] fails to appear for sentencing on a
date set by the court, after reasonable notice, then the parties agree
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that the defendant shall be sentenced in absentia to the statutory
maximum allowable by law for the charged offenses which is
stipulated to be thirty (30) years in the state prison and the State of
Florida will not waive any applicable minimum mandatory sentences
or fines.
(Emphasis added.)
After entering into the plea agreement, the defendant’s case was set for
several status reports with dates ranging from January 28, 2013 through and
including July 10, 2014. The defendant failed to appear in court on July 10, 2014.
The clerk advised the trial court that “[n]otice was sent to the defendant, but it was
returned.” The State argued to the court that the defendant was given oral notice to
appear and, aside from failing to appear on July 10, 2014, the defendant had also
been arrested for domestic violence, and both the failure to appear in court and the
arrest constituted violations of the plea agreement. The State moved for issuance of
an alias capias and asked that the defendant be sentenced in absentia if he was not
arrested within thirty days. Defense counsel represented to the court that he had not
been in contact with the defendant, but that “[the defendant] should have known
that he had to be here.” The trial court unsealed the plea agreement and issued the
alias capias.
On August 27, 2014, a hearing was held on the State’s motion to execute the
provisions of the plea agreement that allow for the defendant to be sentenced in
1 “Willingly” is handwritten and initialed.
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absentia. The defense objected, arguing that the defendant had not been given
notice of the sentencing hearing and, consequently, had no knowledge he had to
appear. The trial court, over defense objection, granted the motion and imposed a
thirty-year prison sentence. The defendant was arrested on the alias capias on
September 23, 2014.
On appeal, the defendant argues that the trial court could not sentence him in
absentia because he did not have proper notice and there was no determination that
his failure to appear was willful. We agree and reverse.
Although the plea agreement provides that an unqualified failure to attend a
court hearing will result in the imposition of a thirty-year sentence, the trial court’s
ability to impose a sentence in absentia is limited to situations where the defendant
“willfully” fails to appear at a sentencing hearing after he has been given “proper
notice.” Moreover, “a defendant cannot be sentenced in absentia for a felony
unless he voluntarily absented himself from the hearing.” Singletary v. State, 870
So. 2d 851, 852 (Fla. 3d DCA 2003) (citing Zuluaga v. State, 793 So. 2d 60 (Fla.
4th DCA 2001)). Here, the record is unclear as to what notice the defendant had of
the July 10, 2014 status report date which triggered the imposition of the thirty-
year sentence. The record before us is also ambiguous, at best, as to what notice
the defendant had, if any, of the August 27, 2014 sentencing hearing. The
defendant was given no opportunity to explain his failure to appear at the
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sentencing hearing so that a determination could be made as to whether the failure
to appear was willful.
Accordingly, given the facts of this case, we reverse the in absentia
sentence and remand for resentencing and further proceedings consistent with this
opinion.
Reversed and remanded with instructions.
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