FRANKLIN MONTOYA v. STATE OF FLORIDA (2023)

On Confession of Error

The defendant appeals his sentence for violating probation. He argues the trial court erred in not allowing him or his counsel to present evidence or argument to mitigate the sentence. To its credit, the State has filed a Confession of Error. We reverse.

The State charged the defendant with felony battery. The defendant entered a no contest plea and was sentenced to one year community control followed by four years’ probation. Subsequently, the defendant admitted to violating his probation. The trial court reinstated community control and added GPS monitoring.

The defendant then violated his community control. The trial court held an evidentiary hearing on the new violations and found the defendant willfully and substantially violated his community control. Immediately thereafter, the trial court began to pronounce sentence when defense counsel stated:

Judge, before you pass sentence, we were advised that we were here for a hearing on the violation of community control. I am not prepared for sentencing. I would like to have the opportunity to present witnesses and possibly a downward departure. You know, I don't know what's going to happen with a sentencing. So, I would object and ask that it be set at a separate time for sentencing where I could be provided notice to be able to be prepared for a sentencing.

The trial court noted the objection but proceeded to revoke community control and sentence the defendant to five years in prison.

The defendant argues the trial court violated his due process rights by failing to provide an opportunity to present evidence and argument in mitigation prior to imposing sentence. The State agrees and so do we.

We therefore reverse and remand the case to the trial court for a new sentencing hearing before a different judge. See Fla. R. Crim. P. 3.720(b); Larrieux v. State, 138 So. 3d 1221, 1221 (Fla. 4th DCA 2014); Schwartzberg v. State, 215 So. 3d 611, 616 (Fla. 4th DCA 2017).

Reversed and Remanded.

MAY, J.

DAMOORGIAN and FORST, JJ., concur.