Third District Court of Appeal
State of Florida
Opinion filed June 29, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1147
Lower Tribunal No. 19-0891
________________
M.D., a juvenile,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Dawn
Denaro, Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner and John
Eddy Morrison, Assistant Public Defenders, for appellant.
Ashley Moody, Attorney General, and Asad Ali and David Llanes,
Assistant Attorneys General, for appellee.
Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.
LINDSEY, J.
Appellant M.D., a juvenile, appeals from a final order withholding
adjudication of delinquency for resisting an officer without violence. 1
Because at this point in the COVID-19 pandemic, due process requires a
case-specific finding of necessity before a trial court may conduct a remote
adjudicatory hearing over objection, we reverse and remand for a new
adjudicatory hearing.
I. BACKGROUND
While surveilling a Jeep Wrangler that matched the description of a
recently carjacked vehicle, officers from the tactical robbery unit saw M.D.
and another person enter the vehicle and drive away. M.D. drove the vehicle
a short distance and parked on the side of the road. Detective Arteaga
testified that he then verified the tag matched that of the stolen vehicle and
initiated a felony stop.
Several officers pulled up to the Jeep in their unmarked vehicles with
their police lights on. According to Detective Arteaga, “once we attempted
the felony stop and I got out of my vehicle it was like right away the driver
jumped out and started running.” Detective Arteaga further testified that as
he was chasing after M.D., he said “stop running[,] police.” Officers caught
1 This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure
9.140(b)(1)(B).
2
M.D. and, after a brief struggle, placed him in handcuffs. M.D. was ultimately
charged with grand theft of a motor vehicle, burglary of an unoccupied
conveyance, and two counts of resisting without violence. 2
M.D.’s adjudicatory hearing was scheduled to be held remotely over
Zoom 3 on March 8, 2021. M.D. filed a written objection, arguing that a
remote trial would violate his right to be present and his right to confront
witnesses.
At the beginning of the hearing, the trial court ruled as follows:
There’s been cases that have discussed this issue
that have come down throughout the State. Zoom is
the norm at this time in the juvenile system.
We have administrative orders and we have orders
from the Supreme Court as to how trials are to be
conducted in a safe way and so the Court has to
engage in a balance, safety and the Court believes
that his constitutional rights will not be violated in this
trial.
He’ll have a right to confront, the witnesses are
going to be right in front of his face. At any moment
in time when you want to caucus with him you raise
your hand or let me know and I’m more than happy
to put you in a breakout room at any time to speak
2
Though the Jeep was taken during an armed carjacking, M.D. was not
charged with this crime because the victim indicated that M.D. was not the
person who carjacked him.
3
“Zoom is a cloud-based communications application for virtual video
conferencing.” E.A.C. v. State, 324 So. 3d 499, 508 n.9 (Fla. 4th DCA 2021)
(Levine, C.J., specially concurring).
3
with your client, that goes to your client as well if he
wants that meaningful dialogue and communication
with you he can.
But this is how we have been ordered to do things
because of the situation of which we find ourselves
in and we have to be safe and the courts have ruled
that this is a very safe, effective and efficient way to
handle the trial. He’ll be able to see everybody that’s
going to be in front of him.
He’ll be able to speak to his lawyers, at any moment
in time when you want to talk to him further and in
private you let me know and I’m happy to put you in
a room to talk further with him alright.
So we will proceed with this Zoom hearing and we
will begin with the state attorney and you can begin if
you’d like with an opening statement.
Everyone at the adjudicatory hearing appeared remotely, including the
State’s two witnesses: the owner of the vehicle and Detective Arteaga.
During the hearing, there were times when M.D. did not seem to understand
he was participating in a remote trial. For example, he interrupted his
attorney in the middle of cross-examination because he wanted to say
something to the Court:
[COUNSEL FOR M.D.]: Judge if I can interrupt for a
second, our client is raising his hand. I don’t know if
he wants to [talk] to us.
[JUDGE]: Sure. I’ll ask him. M.D. is there a question
that you have for the Court or would you like to go
into a room with your lawyer? Are you objecting to
something?
4
M.D.: Nah I want to say something.
[COUNSEL FOR M.D.]: Okay what?
[JUDGE]: This wouldn’t be the time to say. Hold on
for a moment. Would you like your client . . . to say
something or not.
[COUNSEL FOR M.D.]: No not at this time.
M.D.: Nah I want to say something myself.
[COUNSEL FOR M.D.]: Okay M.D. we’ll talk in a
breakout room and we’ll see if that’s possible and if it
is we’ll make it happen okay but right now I’m going
to finish this cross-examination okay?
M.D.: Okay.
M.D. again interrupted the proceedings during the State’s closing argument:
[JUDGE]: M.D. please put your hands down, it’s
distracting I’m trying to focus on-just sit still please.
Try to sit still, thank you. Thank you very much. Go
on.
After the State rested, the court granted M.D.’s motion for judgment of
dismissal as to grand theft and burglary, finding that the State failed to
sufficiently prove that the vehicle M.D. was driving was the same vehicle that
was stolen. At the conclusion of the adjudicatory hearing, the court found
M.D. guilty of resisting Detective Arteaga without violence and not guilty of
the second count of resisting. M.D. timely appealed.
II. ANALYSIS
5
M.D.’s primary argument on appeal is that forcing him to participate in
a remote proceeding over objection and without case-specific findings of
necessity violated his right to confrontation and right to be present. We write
solely to address this issue. Because we conclude that at this point in the
pandemic, due process requires a case-specific finding of necessity before
a trial court may conduct a remote adjudicatory hearing over objection, we
reverse and remand for a new adjudicatory hearing.
We recognize that juvenile proceedings differ from criminal
proceedings. However, certain due process rights, including the right to
confrontation, apply in juvenile proceedings. See McKeiver v. Pennsylvania,
403 U.S. 528, 543 (1971) (“[T]he applicable due process standard in juvenile
proceedings . . . is fundamental fairness [with] an emphasis on factfinding
procedures. The requirements of notice, counsel, confrontation, cross-
examination, and standard of proof naturally flow[] from this emphasis.”);
T.H. v. State, 47 Fla. L. Weekly D681, D682 (Fla. 2d DCA Mar. 18, 2022)
(“[P]rocedural safeguards found in criminal proceedings, including the right
to confront witnesses, are afforded to a child in a juvenile proceeding through
the Due Process Clause of the Fourteenth Amendment.”). 4
4
As further explained in McKeiver, constitutional rights applicable in criminal
proceedings such as the rights to appropriate notice, to counsel, to
confrontation and to cross-examination, and the privilege against self-
6
This Court reviews whether a juvenile’s due process rights have been
violated under the de novo standard. See T.H., 47 Fla. L. Weekly at D681.
The parties agree that the right to confrontation, which includes the
right to be physically present, is not absolute. See Maryland v. Craig, 497
U.S. 836, 836-37 (1990); Harrell v. State, 709 So. 2d 1364, 1368 (Fla. 1998).
M.D. argues that the trial court was required to make case-specific findings
before ordering that the adjudicatory hearing be conducted remotely. See
Craig, 497 U.S. at 855 (holding that to justify the absence of face-to-face
confrontation of a witness, the trial court must make a case-specific finding
of necessity). The State argues that no case-specific findings were
necessary because the trial court complied with a Florida Supreme Court
administrative order that contained general findings of necessity for remote
proceedings based on the existing public health emergency. 5
incrimination “have equal application to that part of the state juvenile
proceeding that is adjudicative in nature.” 403 U.S. at 533 (emphasis
added).
5
The State relies on Order No. AOSC20-23, (Amendment 9) (Fla. Feb. 17,
2021), which states that “[n]on-jury trials in . . . juvenile delinquency cases
shall be conducted remotely if ordered by the chief judge or the presiding
judge or, if not, shall be conducted in person.” Importantly, the Order states
in its Guiding Principles that “[t]he presiding judge in all cases must consider
the constitutional rights of crime victims and criminal defendants and the
public’s constitutional right of access to the courts.” While the Administrative
Order authorizes remote adjudicatory hearings, it does not do so to the
exclusion of any objections that may be raised and considered.
7
This is a developing area of the law. We therefore consider recent
Florida cases that have addressed the right to confrontation in conjunction
with the public policy concerns surrounding the COVID-19 pandemic. See
Craig, 497 U.S. at 837 (“[T]he right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation at trial only where
denial of such confrontation is necessary to further an important public policy
and only where the testimony’s reliability is otherwise assured.”).
This Court has already considered whether an adult remote violation
of probation proceeding violated a defendant’s due process and
confrontation rights. See Clarington v. State, 314 So. 3d 495, 497 (Fla. 3d
DCA 2020), review denied, SC20-1797, 2021 WL 1561346 (Fla. Apr. 21,
2021). After explaining the flexible nature of due process rights and the
differences between a probation violation hearing and a criminal prosecution,
this Court concluded that “the proceeding proposed by the trial court in this
case appropriately considered these necessities and competing interests,
balancing the defendant’s constitutional rights and the responsibility of the
judicial system to hear, adjudicate and dispose of criminal matters and
conduct criminal proceedings, through the application of temporary
procedures needed to ensure the health and safety of those participating.”
Id. at 509.
8
Clarington was a narrow decision “limited to the nature of the
proceeding at issue (a violation of probation proceeding), and the question
whether such proceeding, if conducted remotely by audio-video technology,
violates petitioner’s due process and confrontation rights, weighed and
analyzed in light of the Coronavirus pandemic and the Florida Supreme
Court’s current administrative orders regulating the conduct of criminal
proceedings in the midst of that public health emergency.” Id.
In E.A.C. v. State, 324 So. 3d 499 (Fla. 4th DCA 2021), the Fourth
District considered whether a juvenile’s confrontation rights were violated
when witnesses appeared via Zoom. Unlike here, the juvenile in E.A.C. was
present in the courtroom with the attorneys and judge. Our sister district
agreed that the juvenile had a due process right to counsel, to confront and
cross-examine witnesses, and to be physically present at his trial. Id. at 504.
However, the court, relying on the analysis in Clarington, disagreed that the
appearance of witnesses via Zoom violated the juvenile’s due process
confrontation rights “under the pandemic circumstances that existed in
August 2020.” Id. at 507.
Judge Levine specially concurred to explain the “limited circumstances
where the specific necessity of waiving ‘face-to-face’ confrontation of
witnesses by the defendant is satisfied by the procedure used in this case
9
during this trial held on August 14, 2020.” Id. (Levine, C.J., specially
concurring). The special concurrence acknowledges that the preferred
procedure is for the trial court to make case-specific findings before allowing
for the questioning of witnesses via Zoom as required by Craig. Id. Further,
the special concurrence concludes that a case-specific finding was not
required in August 2020 because there was a clear necessity, and all
witnesses were in the same situation. 6 Id.
More recently, in a juvenile case procedurally similar to the one now
before us, the Second District considered whether an adjudicatory hearing
conducted in October 2020, where all parties appeared via Zoom, violated
the juvenile’s due process confrontation rights. See T.H., 47 Fla. L. Weekly
D681. As in the instant case, the juvenile in T.H. filed a written objection
arguing that a remote hearing would violate his constitutional rights. The trial
court overruled the objection and determined that the COVID-19 pandemic
and various administrative orders permitted it to deny the juvenile’s right to
confront witnesses in person. Id. The Second District held that “the trial
court erred in ruling that the adjudicatory hearing would proceed via Zoom
6
Judge Ciklin dissented on the basis that the juvenile’s fundamental
constitutional right to confrontation was violated because the trial court failed
to make the case-specific findings required by Craig. Id. at 509 (Ciklin, J.,
dissenting).
10
without allowing [the juvenile] a hearing on his objection and without making
a case-specific finding of necessity to limit confrontation rights.” Id. at D683. 7
Accordingly, the court reversed and remanded for a new adjudicatory
hearing. 8
It is apparent from the cases outlined above (and the various special
concurrences and dissents), that there is some disagreement as to when
remote proceedings conducted during the COVID-19 pandemic violate a
juvenile’s due process rights to confrontation. Early in the pandemic, courts
were more likely to weigh the public policy concerns surrounding public
health and the pandemic in favor of allowing remote proceedings. Moreover,
as recognized by Judge Levine’s special concurrence in E.A.C., in the early
stages of the pandemic, “[i]t seems futile to require a ‘case-specific finding’
in one courtroom that would mirror the situation throughout the state, and
7
See also A.S. v. State, 47 Fla. L. Weekly D946 (Fla. 2d DCA Apr. 27, 2022)
(reversing and remanding for a new adjudicatory hearing); M.M. v. State, 47
Fla. L. Weekly D798 (Fla. 2d DCA Apr. 6, 2022) (same).
8 Judge Atkinson dissented: “because juvenile delinquency adjudicatory
hearings are not subject to the constitutionally enumerated confrontation
right applicable only in criminal proceedings, the trial court here was
permitted to make a categorical finding that necessity demanded that
juveniles only be permitted to confront witnesses against them remotely
through two-way audiovisual technology.” T.H., 47 Fla. L. Weekly at D683
(Atkinson, J., dissenting).
11
potentially the country.” 324 So. 3d at 508 (Levine, C.J., specially
concurring). However, the longer the pandemic lasts, the more demanding
courts have become. 9
Consequently, we follow the more recent cases from the Second
District, which require case-specific findings before the trial court may
conduct a remote adjudicatory hearing over objection. Because we are now
in the later stages of the pandemic, we reverse and remand for a new
adjudicatory hearing. On remand, the adjudicatory hearing may be held via
Zoom if the trial court holds a hearing on M.D.’s objection and makes a case-
specific finding of necessity before limiting his confrontation rights. 10
9
Cf. E.A.C., 324 So. 3d at 508 (Levine, C.J., specially concurring):
There should be a clear correlation between the
existence and severity of the exigency and the
latitude given to the trial court. The longer the
exigency lasts, however, the more demanding we
should be in allowing that accommodation to
continue. The reason for this is clear. As Justice Felix
Frankfurter noted many years ago, “The history of
liberty has largely been the history of observance of
procedural safeguards.” McNabb v. United States,
318 U.S. 332, 347, 63 S.Ct. 608, 87 L.Ed. 819
(1943). As the exigency recedes, so should any
allowance of any emergency accommodation.
10
Holding a hearing on objections to remote appearances is otherwise
addressed in in the Florida Rules of Juvenile Procedure and is applicable
even in the absence of a public health emergency such as a pandemic. See
12
III. CONCLUSION
Because we conclude that at this point in the pandemic, due process
requires a case-specific finding of necessity before a trial court may conduct
a remote adjudicatory hearing over objection, we reverse and remand for a
new adjudicatory hearing.
Reversed and remanded.
Fla. R. Juv. P. 8.104 (requiring a hearing and specific findings of fact on the
record before permitting testimony by closed-circuit television).
13