York v. State

313 So.3d 707

Jennifer Mary Donley YORK, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-4057

District Court of Appeal of Florida, Second District.

Opinion filed December 2, 2020

Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Chief Judge.

Jennifer Mary Donley York appeals her judgment and sentence for misdemeanor battery. She challenges the sufficiency of the evidence at trial as well as the propriety of the trial court's sentencing procedure. We affirm the conviction without comment, writing only to discuss a clear sentencing error that has since been rendered moot.

The record shows that as soon as the jury left the courtroom after giving its verdict, the court announced Ms. York's sentence and declined to entertain any argument on the sentencing despite defense counsel's repeated requests:

THE COURT: All right. Ms. York, I'm adjudicating you guilty of Misdemeanor Battery. And in accordance with the jury's verdict, after adjudicating you guilty, I'm sentencing you to 60 days in the Hillsborough County Jail, followed by six months of probation.

[DEFENSE]: Judge, can the defense be heard as to sentencing?

THE COURT: I will reserve ruling on restitution.

[STATE]: Your Honor, could you order restitution but just reserve as to the amount?

THE COURT: No, I'm reserving as to restitution.

[STATE]: Yes, Your Honor.

THE COURT: Yes, sir?

[DEFENSE]: Judge, if the Court would be inclined to reconsider, we would ask the Court to consider a full probation period. She does have a good job. She is gainfully employed and she's working. We would ask that the Court consider that because it was a mutual fight, that the Court could consider that the victim was a willing participant as a mitigating factor. And we would be prepared to provide more mitigation if the Court will so find.

THE COURT: I didn't hear any evidence that this was a mutual fight.

[DEFENSE]: Okay.

THE COURT: Court's adjourned.

(Emphasis supplied.)

The court's failure to hold a sentencing hearing and consider evidence or argument on Ms. York's sentence was error. Florida Rule of Criminal Procedure 3.720 provides that "[a]s soon as practicable after the determination of guilt and after the examination of any presentence reports, the sentencing court shall order a sentencing hearing." Subsection (b) of that rule provides further that, at the sentencing hearing, "[t]he court shall entertain submissions and evidence by the parties that are relevant to the sentence." Under this rule, the defendant is "entitled to make a statement and present argument to the court." See Davenport v. State, 787 So. 2d 32, 32 (Fla. 2d DCA 2001).

"Failure to comply with Rule 3.720(b) is reversible error." Compere v. State, 262 So. 3d 819, 822 (Fla. 4th DCA 2019) (citing State v. Munson, 604 So. 2d 1270, 1271 (Fla. 4th DCA 1992) ). Indeed, "[a] trial court's refusal to hear evidence and argument regarding a sentence constitutes a denial of due process and is fundamental error." Smith v. State, 268 So. 3d 831, 834 (Fla. 1st DCA 2019) (citing Davenport, 787 So. 2d at 32 ).

Here, the trial court sentenced Ms. York immediately after the jury left the courtroom, without holding the sentencing hearing required by rule 3.720. Further, the court refused to do so even after the defense expressly requested to be heard on sentencing and asked the court to reconsider its refusal. This denied Ms. York due process and constitutes reversible error.

Ordinarily, we would reverse the sentence and remand for a new sentencing hearing pursuant to rule 3.720. See Davenport, 787 So. 2d at 32. But the parties have notified this court that, during the pendency of this appeal, Ms. York completed serving her sentence. Where a sentence has been completed, any errors in that sentence are typically rendered moot. See Vazquez v. State, 930 So. 2d 860, 861 (Fla. 2d DCA 2006) (dismissing app...