Zoom Sentencing Isn’t Fundamental Error

Because the Constitution guarantees you certain rights, Criminal and Civil courts differ greatly. Most people know the right to a lawyer, to confront your accuser and to remain silent. In civil court, you don’t have a right to a lawyer. You don’t have the right to confront your accuser. You don’t have the right to remain silent either. Most importantly in this case, you don’t have the same Due Process rights.

To protect some of these rights, the courts consider moments “critical stages” of a prosecution. Sentencing, when a judge decides your punishment, is a critical stage. Can a judge sentence you over Zoom and protect these rights? The Fourth District Court of Appeal looks at this issue in Brown v. State. No relation.

Remote Sentencing using Zoom to Videoconference

Brown pleads open to Robbery with a Deadly Weapon while wearing a Mask and Armed Burglary with an Assault or Battery while wearing a Mask before the pandemic begins. He scores 75.75 months at the bottom to life in prison. Unfortunately, the judge moves back Brown’s sentencing hearing and then the Covid-19 pandemic stops people from going to court.

Once Covid-19 begins, the Florida Supreme Court issues an order allowing judges to hold court over the internet. Eventually, it allows judges to complete Zoom sentencing hearings. Then, the judge sets Brown’s case for sentencing. Because Brown remains in jail, he appears over Zoom. Everyone else appears in person in court.

Initially, the judge asks if there’s any reason why this hearing should not happen. Neither Brown nor his lawyer object. Then the videoconferencing creates a bunch of issues.

First, Brown testifies while wearing a mask. People often tell him to speak up. Second, the video misses his face around half the time he speaks. During cross examination, the video shows the top of his head at times. Interestingly, Brown calls the prosecutor “Your Honor,” thinking he’s the judge. Third, the prosecutor plays the video from the robbery on a laptop that Brown can’t see from jail.

At the end of the hearing, the judge denies Brown’s request for a downward departure. He finds Brown remorseful, but sentences Brown to 15 years in prison. Accordingly, Brown appeals arguing that the Zoom sentencing violates his right to be present in the courtroom.

Judges Can Hold Sentencing Hearings Remotely……Maybe

Essentially, Brown argues that he has the constitutional right to appear in court at the critical stage of sentencing. Florida Rule of Criminal Procedure 3.180 says he “shall be physically present for sentencing.” Due to his absence, he could not talk in private with his lawyer or see everything that happened. Thus, the court violated his constitutional right to fully participate in his own defense.

The State responds that the Florida Supreme Court changed the rules for appearing because of Covid-19. Now, it allows for Zoom hearings. Also, the defense never complained that it had any of these issues in real time.

To begin its analysis, the Fourth District Court of Appeal notes that Brown’s lawyer did not object to the issues raised in the appeal. Therefore, the Court applies the fundamental error standard. Fundamental error is one of the toughest standards to meet. Normally, denying someone the right to appear at sentencing is fundamental error. However, Brown appearing by video in this case did not thwart fundamental fairness.

The Court relies on two recent cases. In Clarington v. State, the Third District Court of Appeal says that holding a remote violation of probation hearing does not violate the right to confrontation or Due Process. Because the court resolved a writ and the final hearing did not happen yet, it does not address Zoom and the right to counsel. In E.A.C. v. State, this Court allows a Zoom non-jury trial in a juvenile case. It notes that the rules for juveniles aren’t as strong as they are for adults.

Zoom Sentencing Does Not Violate Due Process As Applied to Brown

Here, the Court gives six reasons why the remote sentencing over Zoom did not violate Brown’s Due Process rights. First, neither Brown nor his lawyer requested confidential access to the other. Second, Brown, through his lawyer, had the meaningful opportunity to be heard. Third, Brown presented all the evidence he sought to produce. Fourth, even though he thought he was talking with the judge, Brown’s answers would not have differed. Fifth, the judge found Brown remorseful even though he couldn’t see Brown’s face. Sixth, Brown would not have been able to see the video even if he sat in the courtroom. Also, he lived the video so he knows what it shows. Thus, these practical reasons mean that Brown’s Due Process arguments don’t reach fundamental error.

Lastly, the Court certifies a question to the Florida Supreme Court about whether this is fundamental error. This means it’s asking for help. More importantly, it gives the Florida Supreme Court the ability to address the issue.

Read the Brown opinion here!

Check out my blog post on Zoom use during a hearing on the termination of parental rights to see the difference between the criminal and civil court approaches to videoconferencing.

Talk to an Experienced Florida Criminal Defense Attorney!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown to see if he can help you with your defense! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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