DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMYLIN JAMON’E BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-1426
[January 12, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Charles A. Schwab, Judge; L.T. Case No.
562018CF003211B.
Carey Haughwout, Public Defender, and Cynthia L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The defendant, a juvenile charged as an adult, appeals from his
sentences following his no contest plea to robbery with a deadly weapon
while masked, and burglary of a structure while armed and masked with
an assault or battery. The defendant argues the circuit court erred in two
respects: (1) fundamentally, by conducting the sentencing hearing with
the defendant appearing remotely by video; and (2) reversibly, by denying
the defendant’s request for a downward departure sentence.
We affirm on both arguments. We write to provide discussion of the
first argument only.
Procedural History
The seventeen-year-old defendant and the twenty-two-year-old co-
defendant robbed a gas station’s convenience store while armed with
handguns. According to the arrest affidavit, the store’s surveillance video
showed the following:
The [co-defendant] went around to the register and
removed the entire drawer. The [defendant] stood watch at
the front door and pointed a black pistol at the clerk several
times. The [co-defendant] stopped the clerk on the way out of
the store and demanded his money to which the clerk reached
in his pocket and then put the money in the cash register
drawer. Both suspect males then fled out of the store ....
The defendant and the co-defendant were arrested later that same
night. The defendant, after waiving his Miranda rights, told the police that
the co-defendant had planned the robbery, he (the defendant) had agreed
to participate in the robbery, and the co-defendant had given him a
handgun to use during the robbery.
The state charged the defendant (and the co-defendant) with two
counts: robbery with a deadly weapon while wearing a mask, and burglary
of a structure while armed and masked with an assault or battery. Both
offenses were first-degree felonies.
Before the pandemic affected courthouse operations, the defendant
entered a no contest plea to both charges. Thus, at the plea hearing, the
defendant was physically present in the courtroom with his counsel. The
defendant acknowledged his lowest permissible prison sentence was 75.75
months, and the maximum was life in prison. After accepting the
defendant’s plea, the judge scheduled a sentencing hearing.
The judge continued the sentencing hearing twice before the pandemic
affected courthouse operations. The judge granted the second
continuance so defense counsel could have more time to review the
convenience store’s surveillance video and present witnesses in an effort
to mitigate the defendant’s culpability compared to the co-defendant.
By the time the third sentencing date arrived, the pandemic had
resulted in courthouse closures. The judge rescheduled the sentencing
hearing for a fourth date.
On the fourth sentencing date, the defendant appeared by video from
the county jail. The judge stated the defendant’s sentencing hearing would
have to be rescheduled again. A jail deputy responded that the defendant
had heard the judge. The judge proposed a fifth sentencing date for later
that week, and the following discussion occurred between the judge and
defense counsel:
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JUDGE: ... [T]he reality is if you’re available Thursday or
Friday, we’re looking to get camera time Thursday and Friday,
are you available?
….
DEFENSE COUNSEL: [Y]es, Your Honor.
JUDGE: All right. I’ll have [my judicial assistant] ... get in
touch with you as soon as we know what day that we are able
to get camera time and if you’re still available, we’ll do it then.
DEFENSE COUNSEL: Perfect.
(emphasis added).
On the fifth sentencing date, the defendant appeared remotely from the
county jail by video, but the attorneys, defense witnesses, and the judge
were physically present in the courtroom. All wore face masks, including
the defendant. After swearing in the defendant, the judge asked him: “I
can see you by Zoom video. I believe you can see me, yes?” The defendant
answered: “Yes, sir.” The judge asked defense counsel if any reason
existed why sentencing could not proceed. Defense counsel answered:
“No, sir.” The judge did not conduct a colloquy to determine if the
defendant waived his physical presence at sentencing.
Defense counsel called the defendant to testify. During the defendant’s
testimony, he was wearing a face mask and defense counsel had to ask
the defendant to “speak up.” Direct examination lasted fourteen minutes,
and nearly half of that time, the defendant’s face was not visible on the
projected screen. Instead, only the top of his head could be seen.
The defendant testified that on the day when the robbery occurred, he
had just met the co-defendant through a friend. While they were leaving
the friend’s house by car, the co-defendant asked the defendant if he
wanted to rob a store. The defendant laughed at the co-defendant at first.
The co-defendant “kept questioning [the defendant] telling [the defendant]
he just needed [the defendant] to hold the door” during the robbery. “After
ten minutes [the defendant] just told [the co-defendant] [he’d] do it.”
When they got to the store, the co-defendant pulled out two guns from
under the car’s seat, and gave the defendant a gun. The defendant verified
that the gun which the co-defendant gave him was not loaded. During the
robbery, the defendant held the door like the co-defendant had asked him
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to. After the robbery, the defendant and co-defendant were stopped by
police, and the defendant told the police “everything.”
At the end of defense counsel’s direct examination, the defendant read
to the judge a prepared statement in which he expressed remorse for his
actions. After the defendant read his statement, defense counsel
mentioned the surveillance video, and said he “would stipulate that [the
defendant] was at the door holding a weapon.”
The prosecutor then cross-examined the defendant for two minutes.
Although the defendant’s masked face had greater visibility during cross-
examination than during direct testimony, his face still was not visible for
nearly forty seconds. Further, in responding to one of the prosecutor’s
questions, the defendant referred to the prosecutor as “Your Honor.” The
prosecutor then corrected the defendant: “[I]t’s not the judge [who’s]
asking ... questions right now, it’s the prosecutor ... just so we’re clear. I
know you can’t see me.”
After the defendant’s testimony, defense counsel had the defendant’s
father and stepmother testify on the defendant’s behalf, and then rested.
The prosecutor introduced the store’s surveillance video into evidence,
without objection. Because the courtroom had no screen, the prosecutor
brought his laptop computer to the bench so the judge could view the
surveillance video. Defense counsel moved to a spot in the courtroom
where he also could view the surveillance video. Defense counsel did not
object that the defendant was unable to view the surveillance video.
After playing the surveillance video, the state requested the judge,
without objection, to take judicial notice of various items from the court
file, including the Department of Juvenile Justice’s summary of the
defendant’s juvenile criminal record. The defendant’s juvenile criminal
record indicated, among other things, that he had “a significant history of
noncompliance with authority, ... problems controlling his behavior,
history of substance use, documented gang member/associate, and
continues to put himself in danger. ...”
In closing, defense counsel requested a downward departure sentence
based on various mitigating circumstances, including that the defendant
allegedly was an accomplice with relatively minor participation; he
allegedly had acted under duress and/or the older co-defendant’s
domination; and the offenses allegedly constituted an isolated incident
committed in an unsophisticated manner, for which he had shown
remorse.
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The state opposed the downward departure request, and recommended
a thirty-five-year sentence. The state noted: “The defendant was in
possession of a firearm. He did point it at the clerk in the store. The state
would disagree that he was only a minor … [participant] in this offense,
based on what is seen in the video.”
At the hearing’s conclusion, the judge denied the defendant’s request
for a downward departure sentence, pertinently reasoning:
The defense has indicated that [the defendant] was a
relatively minor participant in this. While it can be viewed in
that light, I’ve reviewed the [surveillance video]. It’s readily
apparent that [the defendant] was acting in the capacity of a
participant and look out. He was at the door. He was seen
viewing inside the store, outside the store, was blocking the
door both for exit and entry. And much as indicated by
counsel, he was seen pointing the firearm directly at the victim
in the case.
As it relates [to] duress or domination under another, the
court finds that the evidence in viewing it, not that [the
defendant] is under the duress of another individual, but he
was an active participant. I note the age difference [between
the defendant and the co-defendant], but I also note ... the
manner in which [the defendant] acted during the time of the
actual robbery.
….
As it relates to unsophisticated and isolated incident where
[the defendant] has shown remorse ... It needs to be
unsophisticated and isolated with remorse. I would agree that
it is, in fact, isolated. [The defendant] has not previously
[committed] such ... [serious] offense[s]. I do find that he is
remorseful. As [it] relates to the unsophisticated element,
however, the video imagery itself indicates that it is more than
unsophisticated, but it does appear to be planned in that [the
defendant] was performing his function in this case as both
lookout and what appears to be preventing the victim from
getting outside the store or anybody else from getting in.
As a result ... I don’t find that there’s a mitigating
circumstance ... to ... depart from the guidelines.
5
The judge then pronounced the defendant’s sentence: concurrent
fifteen-year prison terms on each count with credit for time served,
followed by ten years’ probation.
The Parties’ Arguments on Appeal
This appeal followed. The defendant summarizes his fundamental error
argument as follows, in pertinent part:
This case concerns a criminal defendant’s most basic
constitutional right to be present in the courtroom at every
critical stage in the proceedings. Here, the sentencing court
sentenced [the defendant] via Zoom without a colloquy
certifying [the defendant] waived his right to be physically
present. This expressly violated Florida Rule of Criminal
Procedure 3.180 and denied [the defendant] his federal and
state constitutional rights to due process and effective
assistance of counsel. The error is harmful because [the
defendant] did not have confidential access to his attorney nor
could he see what was occurring within the courtroom. As
such, the [circuit] court violated [the defendant’s]
constitutional right to fully participate with his own defense.
Therefore, this Court should reverse [the defendant’s]
sentence and remand for a de novo sentencing hearing.
The state responds that the defendant’s virtual presence at sentencing
did not constitute fundamental error. In support, the state argues:
[W]hile Fla. R. Crim. P. 3.180 provides that a criminal
defendant “shall” be physically present for sentencing, such
requirement was suspended by the Chief Justice’s emergency
orders addressing the COVID-19 pandemic. Further, based
on all the circumstances of this case and “a balancing of the
competing interests at stake,” there was no denial of due
process in having [the defendant] appear at sentencing using
video-conferencing technology. Nor was there a denial of
effective assistance of counsel as [the defendant] never
requested to speak privately with his counsel and [the
defendant] had a meaningful opportunity to be heard at
sentencing through counsel.
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Our Review
We agree with the state that, under this case’s facts, any error in not
having the defendant physically present for sentencing did not rise to the
level of fundamental error. We first will address the applicable standards
of review before addressing the merits.
Recent case law from this court and the Third District have addressed
whether conducting remote criminal hearings during a pandemic violates
a defendant’s due process right to be physically present during a critical
stage of a criminal proceeding. However, in both cases, an objection was
raised to the circuit court in order to preserve the alleged error. See E.A.C.
v. State,
324 So. 3d 499, 514 n.11 (Fla. 4th DCA 2021) (“Had the
[defendant] not made what was relatively close to a textbook example of a
proper objection, we would be summarily affirming the trial court for lack
of preservation.”) (Ciklin, J. dissenting); Clarington v. State,
314 So. 3d
495, 498 (Fla. 3d DCA 2020), review denied, No. SC20-1797,
2021 WL
1561346 (Fla. Apr. 21, 2021) (“The defense objected to conducting the
probation violation hearing remotely, given that [the defendant] and his
counsel would be in separate locations, and indeed, all participants would
be participating from separate locations, and no one would be physically
present in the courtroom (except perhaps for the judge). [The defendant]
asserted such a proceeding would violate his constitutional rights to
counsel, confrontation and due process.”).
Here, however, the defendant did not object to appearing by video for
his sentencing hearing. Thus, we can review the defendant’s argument
only for fundamental error. See Smith v. State,
320 So. 3d 20, 27 (Fla.
2021) (“If an issue is not preserved, it is reviewed only for fundamental
error.”); Shepard v. State,
227 So. 3d 746, 749 (Fla. 1st DCA 2017)
(“Unpreserved arguments in the sentencing process are reviewed for
fundamental error.”) (citation omitted).
Further, we conduct this review de novo. See State v. Smith,
241 So.
3d 53, 55 (Fla. 2018) (“Whether an error is fundamental ... is a question of
law [which] [the appellate court] review[s] de novo.”); Serna v. State,
264
So. 3d 999, 1001 (Fla. 4th DCA 2019) (“We review a trial court’s
compliance with the guarantees of due process de novo.”).
Generally, “any error in denying a defendant her or his right to be
present at a critical stage of any proceeding is fundamental error.” Orta v.
State,
919 So. 2d 602, 604 (Fla. 3d DCA 2006) (citation omitted). That is
because “[s]entencing is a critical stage of a criminal proceeding.” Cuyler
v. State,
131 So. 3d 827, 828 (Fla. 1st DCA 2014).
7
However, the fundamental error standard “imposes a high burden on
the defendant to establish that the error goes to the foundation of the case
or the merits of the cause of action and is equivalent to a denial of due
process.” Abdool v. State,
53 So. 3d 208, 220 (Fla. 2010) (citation and
internal quotation marks omitted).
We conclude, under this case’s facts, the defendant’s appearance by
video for his sentencing hearing did not establish an error that went to the
foundation of the case or denied him due process. Before addressing those
facts and our conclusion, we will review the instructive cases of Clarington
and E.A.C. to add context for our decision.
In Clarington, the defendant filed a petition for writ of prohibition
seeking “to prohibit the trial court from conducting a remote probation
violation hearing.” 314 So. 3d at 497. The participants appeared from
separate locations. Id. at 498. Even the defendant was located apart from
counsel. Id.
The Third District denied the petition as not having violated rule 3.180
or the defendant’s confrontation and due process rights. As for rule 3.180,
our sister court reasoned:
[E]ven if rule 3.180 were construed to include probation
violation hearings within its scope, the Florida Supreme Court
has temporarily suspended application of this rule in light of
the public health emergency created by COVID-19, by which
the conduct of in-person proceedings could pose a risk of
exposure to, or transmission of, the novel coronavirus.
Id. at 500.
The Third District also concluded the trial court’s order directing the
probation violation hearing be conducted remotely “[did] not violate
Clarington’s rights to confrontation and due process.” Id. at 509. Our
sister court reasoned:
The concept of due process is not rigid or static, but flexible
and dynamic. As the United States Supreme Court observed
in Morrissey v. Brewer,
408 U.S. 471, 481 ... (1972), “due
process is flexible and calls for such procedural protections as
the particular situation demands.” See also Mitchell v. W.T.
Grant Co.,
416 U.S. 600, 610 ... (1974) (noting: “The
requirements of due process of law ‘are not technical, nor is
8
any particular form of procedure necessary.’ Due process of
law guarantees ‘no particular form of procedure; it protects
substantial rights.’ ‘The very nature of due process negates
any concept of inflexible procedures universally applicable to
every imaginable situation.’”) (citations omitted); Caple v.
Tuttle’s Design-Build, Inc.,
753 So. 2d 49, 51 ([Fla.] 2000)
(recognizing: “It has long been established that flexibility is a
concept fundamental to a determination of the adequacy of a
statute’s due process protections. ... Furthermore, rather than
articulating a laundry list of specific procedures required to
protect due process, the United States Supreme Court has
emphasized that the protection of due process rights requires
balancing the interests of the parties involved.”) (citations
omitted). Whether a proceeding comports with fundamental
principles of due process depends on, and is informed by, the
attendant circumstances and a balancing of the competing
interests at stake.
Clarington, 314 So. 3d at 501.
In E.A.C., we concluded that conducting a remote non-jury trial in a
juvenile proceeding also did not violate the juvenile’s confrontation or due
process rights under the pandemic circumstances which existed at the
time of trial. 324 So. 3d at 507. In reaching that conclusion, we expressly
relied upon “the thoughtfully written opinion of the Third District in
Clarington.” Id. at 505.
Similar to the holdings in Clarington and E.A.C., we conclude, under
this case’s facts, the defendant’s appearance by video for his sentencing
hearing did not violate his due process rights under the pandemic
circumstances which existed at the time. We cite six reasons for our
conclusion.
First, although the defendant argues he “did not have confidential
access to his attorney” and thus did not have the “right to fully participate
with his own defense,” the record shows neither the defendant nor his
counsel ever requested to speak privately with one another at any point
during the sentencing hearing.
Second, the record shows the defendant had effective assistance of
counsel at sentencing. Defense counsel was the same counsel who had
represented him at the change of plea before the pandemic, and therefore
was very familiar with the case’s facts. Defense counsel also had requested
and obtained a continuance so he could have more time to review the
9
convenience store’s surveillance video and present witnesses in an effort
to mitigate the defendant’s culpability compared to the co-defendant.
Thus, the defendant had a “meaningful opportunity to be heard through
counsel” at sentencing. Fla. R. Crim. P. 3.180(b).
Third, the defendant was able to present all of the evidence and
argument which he sought to introduce at sentencing, which consisted of
his testimony, his father’s and stepmother’s in-person testimony, and his
request for a downward departure sentence. The record shows the
sentencing hearing lasted almost one hour, during which neither the
defendant nor his counsel requested more time or a continuance.
Fourth, to the extent the defendant argues he inaccurately believed he
was speaking to the judge and not the prosecutor during cross-
examination, because the video technology reduced his ability to see who
was questioning him, nothing in that discussion indicates the defendant
said anything to damage his mitigation argument, or that his responses
would have been different if he had known the questions had come from
the prosecutor and not the judge.
Fifth, to the extent the defendant argues his ability to express remorse
and the reasons for his actions was reduced because his face was masked
and otherwise obscured by the video camera’s angle, the judge expressly
found the defendant was remorseful. Thus, appearing by video apparently
did not hinder the defendant’s ability to express remorse. Rather, the
record shows the judge denied a downward departure because the
surveillance video showed the defendant actively participated in the
robbery, including pointing a firearm at the victim, and the crimes were
not committed in an unsophisticated manner.
Sixth, to the extent the defendant argues his inability to see what was
occurring within the courtroom prevented him from watching the
surveillance video when shown to the judge, the record shows neither the
defendant nor his counsel ever requested the prosecutor’s laptop be
maneuvered to permit the defendant to watch the surveillance video. In
any event, whether the defendant was physically in the courtroom or
appearing remotely would not have altered the video evidence or how the
judge viewed it. We also must assume the defendant knew what was
depicted in the surveillance video, because he was there.
In reaching our decision, we acknowledge both Clarington and E.A.C.
are distinguishable in certain respects which limit their application here.
10
Clarington involved a probation violation hearing and, as the Third
District court noted: “A probation violation hearing is not considered a
‘critical stage of trial’ which would automatically trigger a defendant’s
constitutional confrontation right.” 314 So. 3d at 502. Here, however, the
alleged constitutional violation occurred at the defendant’s sentencing
hearing which, as stated above, is “a critical stage of a criminal
proceeding.” Cuyler,
131 So. 3d at 828.
E.A.C. involved a juvenile proceeding and, “while juveniles are provided
many of the protections afforded to adults in criminal proceedings, they
are not afforded the same panoply of rights.” 324 So. 3d at 506. Also in
E.A.C., only the witnesses testified remotely, while the juvenile was
physically present at his trial alongside his counsel, the prosecutor, and
the trial judge. Id. at 502. Here, however, only the defendant appeared
remotely, while the attorneys, defense witnesses, and the judge were
physically present in the courtroom.
Despite these distinctions, we maintain our conclusion that, under this
case’s facts, the defendant’s appearance by video for his sentencing
hearing did not establish an error that went to the foundation of the case
or denied him due process, for the reasons which we have expressed above.
Based on the foregoing, no fundamental error occurred, and thus we
affirm.
Affirmed.
WARNER, J., concurs.
LEVINE, J., concurs specially with an opinion.
LEVINE, J., specially concurring.
I agree with the majority opinion but write to emphasize the very limited
nature of this case. The use of a remote Zoom platform in appellant’s
sentencing hearing, and appellant’s inability to physically appear in
person during that hearing, was clearly limited to the facts of this case and
to the circumstances surrounding this pandemic. The hearing in question
took place on June 18, 2020, during the height of the pandemic that had
engulfed our state and country from March 2020.
11
On June 18, 2020, there were 3,207 new cases reported in Florida. 1 At
that time, this was the highest number reported in a single day. 2 On that
day, 12,577 people were hospitalized in Florida, and 43 people had died in
our state. 3 The county infection rate for St. Lucie County on that day was
1,057 cases. 4 I highlight these numbers to give perspective to what the
courts were facing on the day of this sentencing. In E.A.C. v. State,
324
So. 3d 499 (Fla. 4th DCA 2021), we noted the infection rates,
hospitalizations, and deaths that occurred on August 14, 2020 at the time
of that juvenile trial. “In August 2020 it was clear that we were in the
throes of the pandemic. The vaccines that are presently widely and readily
available were in phase 3 trials and not available to the public.”
Id. at 507
(Levine, J., concurring). This was also true on June 18, 2020. The risks
that concerned us for an “in-person” trial in August 2020 in E.A.C., would
still be present, if not more acute, in June 2020 for an “in-person”
sentencing.
This case should not be read to invite future encroachments on the
right to be present at sentencing. It should be clear that in the future, as
the exigencies of the pandemic as manifested in June 2020 recede, “so
should any allowance of any emergency accommodation.” E.A.C., 324 So.
3d at 509 (Levine, J., concurring).
* * *
Not final until disposition of timely filed motion for rehearing.
1 http://www.floridahealth.gov/newsroom/2020/06/061820-1213-
covid19.pr.html
2 https://www.wtsp.com/article/news/health/coronavirus/june-18-sees-
highest-single-day-jump-in-covid-19-cases-in-florida/67-948e451f-48bb-4927-
b274-a0d091ba00e5; https://www.cnn.com/world/live-news/coronavirus-
pandemic-06-18-20-intl/h_3591c41dde754a80596c896a04e53112
3 https://www.wtsp.com/article/news/health/coronavirus/june-18-sees-
highest-single-day-jump-in-covid-19-cases-in-florida/67-948e451f-48bb-4927-
b274-a0d091ba00e5;
http://www.floridahealth.gov/newsroom/2020/06/061820-1213-
covid19.pr.html
4 https://www.tcpalm.com/story/news/local/2020/06/18/coronavirus-florida-
updates-covid-19-treasure-coast/3213040001/
12
