264 So. 3d 999
Fla. Dist. Ct. App.2019Background
- Jessica Serna pleaded no contest to multiple fraud, forgery, and related charges; sentencing followed.
- Defense sought a withhold of adjudication based on mitigators: alleged drug problem, amenability to treatment, no prior felonies, and that the offenses were isolated and unsophisticated.
- The State disputed the mitigation evidence, asserting no proof of substance abuse or amenability to treatment and challenging the unsophisticated characterization.
- The trial judge stated it would not withhold adjudication "absent a showing of remorse" and asked defense counsel for last word; counsel requested that Serna be placed under oath to testify, which the court denied.
- The court adjudicated Serna guilty and imposed ten years probation; Serna appealed, arguing denial of the opportunity to present sworn mitigation testimony (and allocution).
Issues
| Issue | Appellant's Argument | State's/Trial Court's Argument | Held |
|---|---|---|---|
| Whether denying sworn testimony at sentencing violated due process and Rule 3.720(b) | Serna argued the court refused her request to be placed under oath to present mitigation rebutting issues raised by the State and judge | The State contended no preservation or that denial was proper; court questioned remorse and declined oath | Reversed: court violated Rule 3.720(b) and due process by refusing to entertain sworn mitigation evidence; remand for new sentencing |
| Whether allocution claim was preserved/raised | Serna asserted she was denied allocution | Trial record showed counsel requested oath (not expressly unsworn allocution), so allocution not addressed on appeal | Court declined to decide allocution claim (not raised below as allocution); focused on sworn testimony denial |
| Whether error was fundamental if unpreserved | Serna argued the request was unambiguous and preserved; alternatively, error was fundamental | State argued lack of contemporaneous objection | Court found error fundamental if unpreserved and reversible because it deprived meaningful opportunity to be heard |
| Scope of Rule 3.720(b) — must court "entertain" mitigation proffers? | Serna: Rule requires court to entertain submissions and evidence, including proffered sworn testimony | State: discretion over admissibility but must follow rule | Held that "entertain" requires allowing defendant to proffer mitigation (including sworn testimony) and summarily denying that request violated the rule and due process |
Key Cases Cited
- Hill v. State, 246 So. 3d 392 (Fla. 4th DCA 2018) (standard of review for due process compliance)
- Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015) (distinguishing cases where defendant declined sworn opportunity)
- Munson v. State, 604 So. 2d 1270 (Fla. 4th DCA 1992) (failure to comply with Rule 3.720(b) is reversible error)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process requires a meaningful opportunity to be heard)
- Goldberg v. State, 65 So. 3d 115 (Fla. 3d DCA 2011) (defendant entitled to present rebuttal evidence of remorse)
- Chillingworth v. State, 846 So. 2d 674 (Fla. 4th DCA 2003) (defendants entitled to make a statement and present mitigation)