246 So. 3d 392
Fla. Dist. Ct. App.2018Background
- Harvey Hill was found to have violated probation after a VOP hearing; the court revoked probation and imposed a 10-year prison sentence (credit for time served).
- After close of evidence and closing arguments, Hill discharged his counsel and proceeded pro se with standby counsel present. The trial judge denied several requests by Hill to present additional evidence.
- Hill made an ore tenus motion to disqualify the trial judge during the court’s oral pronouncement; that motion was denied.
- The court announced findings of violation and then proceeded to sentence without giving Hill an opportunity to make an unsworn allocution, despite Hill’s clear request to speak on his own behalf.
- Hill appealed, raising four issues: refusal to allow reopening after closings; adequacy of the Faretta inquiry when he sought to fire counsel; denial of opportunity to allocute; and whether a successor judge properly filed a written revocation order and ruled on a rule 3.800(b)(2) motion following a prior judge’s sua sponte recusal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by refusing to allow reopening after closings | Hill argued the court should have permitted reopening to present further evidence | State argued no abuse; affirmed below | Affirmed without comment |
| Whether the court’s Faretta inquiry was inadequate when Hill discharged counsel | Hill argued the inquiry was insufficient to ensure waiver of counsel was knowing and voluntary | State argued inquiry was adequate | Affirmed without comment |
| Whether Hill was denied opportunity to allocute before sentencing | Hill argued he expressly asked to speak and was denied his right to make an unsworn statement at sentencing | State implicitly argued no denial or that requests were dilatory | Reversed and remanded for new sentencing so Hill can allocute (court treated request as preserved; due-process/Rule 3.720(b) violation) |
| Whether successor judge properly entered written revocation order and denied rule 3.800(b)(2) motion after prior judge recused | Hill argued successor’s actions were improper given prior judge’s sua sponte recusal | State argued successor’s rulings were proper | Moot (remanded for new sentencing; issue not reached) |
Key Cases Cited
- Flegal v. Guardianship of Swistock, 169 So. 3d 278 (Fla. 4th DCA 2015) (de novo review of due process compliance)
- Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015) (recognizing defendant’s right to make unsworn allocution pre-sentencing)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008) (preservation of allocution-related claims where defendant clearly intends to speak)
- Larrieux v. State, 138 So. 3d 1221 (Fla. 4th DCA 2014) (VOP sentence reversed where court failed to allow mitigation or argument before imposing maximum sentence)
- Barlow v. State, 784 So. 2d 482 (Fla. 4th DCA 2001) (describing allocution as opportunity for defendant’s unsworn mitigating statement)
- Ventura v. State, 741 So. 2d 1187 (Fla. 3d DCA 1999) (trial court must entertain submissions relevant to sentence under Rule 3.720(b))
- Witt v. State, 983 So. 2d 708 (Fla. 5th DCA 2008) (allocution right violation warranted reversal)
- Dean v. State, 60 So. 3d 532 (Fla. 1st DCA 2011) (failure to allow defendant to address court before sentencing is error)