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”
How later courts described this case
- 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”
- “This Court also has recognized that the Sixth Amendment right of confrontation does not apply in sentencing proceedings.”
- “[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.”
- recognizing that “denial of counsel” claims “remain subject to the contemporaneous objection rule; if not preserved at trial, they may be reviewed on appeal only for fundamental error”
Written by the judges who cited it.
The opinion
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 David Llanes, Assistant Attorney
General, for appellee.
Before EMAS, SCALES and BOKOR, JJ.
SCALES, J.
Juan Carlos Gonzalez appeals the trial court’s September 22, 2020
“Order Revoking Probation and Sentencing Defendant,” claiming that the
trial court committed fundamental error by conducting Gonzalez’s probation
violation and sentencing hearing via the Zoom videoconferencing platform. 1
Specifically, Gonzalez claims that he and his attorney had the right to be
present in the courtroom for the probation violation and sentencing hearing
and that the remote proceedings conducted below by the trial court violated
Florida Rule of Criminal Procedure 3.180 and his rights to due process,
confrontation, and effective assistance of counsel under both the United
States and Florida Constitutions. Recognizing, however, that he participated
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 strong-
armed 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
at the remote hearing without objection and while rule 3.180 was temporarily
suspended, 2 Gonzalez acknowledges that he must establish that any error
in his not being physically present for the remote proceeding must rise to the
level of fundamental error. See Brown v. State, 335 So. 3d 123, 127-28 (Fla.
4th DCA 2022).3 Below, we analyze each of Gonzalez’s alleged assignments
of fundamental error with respect to the trial court’s conducting, remotely,
both Gonzalez’s violation of probation hearing and the resulting sentencing
hearing, and explain why we find no fundamental error on this record, thus
compelling us to affirm. 4
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
Gonzalez does not otherwise challenge the revocation of his probation or
the sentence imposed by the trial court. At oral argument, however,
Gonzalez’s appellate counsel suggested that Gonzalez’s trial counsel was
ineffective for failing to object to Gonzalez’s virtual presence at the probation
revocation and sentencing hearing. Because this issue was not raised in
Gonzalez’s initial brief and because trial counsel’s ineffectiveness is not
3
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).
4
the competing interests at stake and the necessities created by the threat to
public health and safety posed by the novel Coronavirus, . . . the trial court’s
order directing that the probation violation hearing be conducted by use of
remote technology in which each of the participants will be at a separate
location, does not violate Clarington’s right to confrontation or due process.”
Id. at 507.
Based upon our decision in Clarington, with respect to Gonzalez’s rule
3.180, due process, and confrontation clause claims, we conclude that the
trial court did not fundamentally err by conducting Gonzalez’s probation
violation hearing remotely.
B. The Remote Sentencing Hearing: Gonzalez’s Rule 3.180 and Due
Process Claims
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
5
similar rule 3.180 and due process claims made by Brown, who, like
Gonzalez, failed to object to the trial court conducting the sentencing hearing
remotely. Citing to Clarington, the Brown court dispensed with Brown’s rule
3.180 claim, determining that no fundamental error occurred because the
rule had been suspended temporarily by AOSC20-23 in light of the public
health emergency created by the novel Coronavirus. Id. at 128.
In rejecting Brown’s argument that the remote sentencing hearing
fundamentally infringed upon Brown’s due process rights, the Brown court
focused on how the trial court conducted the proceedings, observing, in
relevant part, that: (i) Brown was not denied private access to his counsel
during the hearing; (ii) Brown had a meaningful opportunity to be heard
through his counsel at the hearing; (iii) Brown “was able to present all of the
evidence and the argument which he sought to introduce at sentencing”; and
(iv) none of the technical difficulties that occurred during the hearing
hindered Brown’s ability to present his mitigation argument to the court. Id.
129-30. “[U]nder this case’s facts,” the Brown court concluded, “any error in
not having the defendant physically present did not rise to the level of
fundamental error.” Id. at 127.
We make the same observations regarding Gonzalez’s sentencing
hearing, and reach the same result as did our colleagues in Brown. We
6
conclude that, with respect to Gonzalez’s rule 3.180 and due process claims,
no fundamental error occurred here when the trial court remotely conducted
the sentencing portion of Gonzalez’s hearing.
C. The Remote Probation Violation Hearing and Sentencing Hearing:
Gonzalez’s Effective Assistance of Counsel Claims
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
7
probation officer. The trial court stopped the hearing, confirmed that
Gonzalez wished to speak to his lawyer, and then placed Gonzalez and his
counsel into the private breakout room. When the private conversation
concluded, the hearing resumed. Similarly, during the sentencing aspect of
the remote hearing, Gonzalez requested to speak with his attorney prior to
making a statement to the trial court. The trial court stopped the hearing once
again, placing Gonzalez and his counsel into the virtual breakout room.
Moreover, whenever a hearing participant could not be seen or heard,
or a participant dropped out of the remote proceeding, the trial court stopped
the hearing immediately. Once the technical difficulty was resolved, the trial
court directed counsel to repeat the question that was asked to ensure that
all participants heard both the question and the witness’s answer. At no point
did Gonzalez or his trial counsel inform the trial court of any inadequacies
associated with the use of the platform’s breakout room or the trial court’s
safeguards and remedies employed for technical difficulties.
While it is axiomatic that a criminal defendant has the fundamental right
to counsel at every critical stage of the proceeding, see Amend. VI, U.S.
Const.; Art I, § 16, Fla. Const., which includes “a hearing involving revocation
of probation as well as at the time of sentencing,” Smith v. State, 427 So. 2d
773, 774 (Fla. 2d DCA 1983), it bears noting that “the right to counsel is the
8
right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970) (emphasis added). Hence, our constitutional inquiry in
this plenary appeal is whether the trial court’s use of the Zoom
videoconferencing platform rendered Gonzalez’s counsel so ineffective as
to amount to fundamental error. See Jackson v. State, 983 So. 2d 562, 566
(Fla. 2008) (recognizing that “denial of counsel” claims “remain subject to the
contemporaneous objection rule; if not preserved at trial, they may be
reviewed on appeal only for fundamental error”).
On this record, we are unable to conclude that the remote hearing –
conducted with the safeguards outlined above – resulted in a constitutional
deprivation of the effective assistance of counsel so as to constitute
fundamental error. We agree that, in most settings and under most
circumstances, it is probably optimal to have counsel sitting next to the
defendant at the same table. But this is not a case where either Gonzalez or
his attorney notified the trial court that some infirmity of the remote platform
hindered Gonzalez’s counsel’s effectiveness, and, even on appeal,
Gonzalez has not identified any such infirmity. We decline Gonzalez’s
invitation to conclude, under circumstances presented here, that a lawyer
who is not sitting next to a defendant at counsel table during a probation
violation hearing or a probation sentencing hearing is ineffective as a matter
9
of law, such that a trial court commits fundamental error by remotely
conducting such proceedings.
D. The Sentencing Hearing: Gonzalez’s Confrontation Clause Claims
Finally, we dispose of Gonzalez’s claim that the trial court
fundamentally erred by conducting the sentencing hearing remotely resulting
in a violation of Gonzalez’s rights under the confrontation clause. 5
While the Florida Supreme Court has determined that the confrontation
clause applies in sentencing hearings for capital cases, 6 the confrontation
clause’s applicability in sentencing hearings for non-capital cases is less
certain. 7 We need not reach or decide the clause’s applicability in this case,
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
10
though, because no circumstances giving rise to the confrontation clause’s
application occurred at sentencing. Indeed, the trial court considered no
additional witness testimony or testimonial evidence during Gonzalez’s
probation violation sentencing hearing. We decline Gonzalez’s invitation to
conclude that, under these circumstances, the trial court fundamentally erred
by conducting a remote sentencing hearing in conjunction with a probation
violation.
Accordingly, finding no fundamental error on this record, we affirm the
challenged order.
Affirmed.
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.”).
11