Mathew R. Nipper, Appellant, v. State of Florida, Appellee. (2024)

Mathew Nipper stands convicted of two felonies following a jury trial: burglary of a dwelling and battery on an elderly person. The convictions earned him a mandatory life sentence as a prison-releasee-reoffender on the burglary conviction and a five-year concurrent prison term for the battery. He appeals, raising three issues. We write to address but one: the trial court's decision to allow the first day of trial to proceed—the State's entire case-in-chief—in Nipper's absence. As we explain, the trial court incorrectly concluded that Nipper had absented himself voluntarily—and thereby had given up his right to be present—based on his drug and alcohol overdose the night before. We reverse and order a new trial.

I

After being charged, Nipper pleaded not guilty and made bail, so he was out pending trial. He was present in the courtroom for jury selection, which occurred on a Monday. Days earlier, Nipper's newly hired counsel had requested a continuance, contending he had just gotten into the case and deposed the victim, who gave “wishy-washy” and conflicting answers that needed to be addressed. That request was denied.

The jury having been selected and sworn, opening statements would commence that coming Thursday at 8:30 a.m., which the parties acknowledged. The court called the case Thursday about 8:45 a.m., and Nipper's counsel was present in the courtroom; Nipper was not. The court asked counsel about his client's whereabouts. To this, counsel replied that he had just come from visiting Nipper at the hospital, Nipper having been admitted there earlier in the morning. Nipper did “not look good,” according to his counsel. The lawyer's understanding was that Nipper had been “taken there by ambulance last night.” Counsel continued: “Obviously I don't have a great deal of information as I only found out about this [at] 6:45-ish and went over to the hospital, saw him, and came here.” The court questioned whether “this [was] a physical ailment,” or whether it was “[h]im trying to force a continuance by any means possible.”

The State responded it was ready to proceed with the trial:

My witnesses are here. As far as I'm concerned, the Defendant's made himself unavailable. This is not the first attempt to try to get a continuance. This case has been pending for two years. ․ There was [sic] a couple more attempts at a continuance. Seems like this is a last ditch effort. I've tried to get information about what exactly happened. Nobody is telling me anything. There's no witness here to talk about what exactly happened. It's the State's position that it was likely voluntary and he just doesn't want to be here, so ․ As far as the State's concerned, he has made himself unavailable and we're ready to go.

The trial court responded, “Makes a hell of an issue for appeal.”

The trial court continued:

It's unfortunate to have to start a trial without the Defendant, but ultimately if he has voluntarily absented himself from the proceedings, we're going to move forward. ․ Again, this is no different than a person who runs in the middle of a trial as opposed to now. It's looking like he's running from the beginning of the trial.

Nipper's counsel protested:

Well, Your Honor, there would be no way to defend this case without his testimony and ․ I'd say we have no information as to what caused this, so ․ this would be the same as if he were arrested. He's in the hospital, he can't come here, he's not physically able to make it here, so therefore I would ask that we continue this to a later date.

(emphasis supplied).

The trial court gave counsel fifteen minutes “to see if you can find any additional information before a ruling needs to be made. From there, we're moving on.” When Nipper's counsel returned to the courtroom, he had Christina Jenkins, “a really good friend” of Nipper's, on the phone. She explained that Nipper had shown up at her house the night before, very nervous about the trial, and he apparently “had been drinking a little bit ․ and he showed up at my door.” She had not been expecting him, and she was on her way out to get a couch. “He was drinking. I told him not to drive. I said, do not drive, just rest here, I'll be back.”

Jenkins got lost while out looking for the couch and did not return home for two hours. When she entered her house, Jenkins “heard gasping” and found Nipper “dead on my floor in front of my bathroom, completely blue and dead.” She attempted CPR and called 911. Police and emergency personnel responded, and Nipper was taken by ambulance to the hospital. Jenkins followed and was “up all night” there: “I just left the hospital just now and I was going to head straight to the courthouse once I heard ․ you all needed to hear from me.” Jenkins explained that Nipper was admitted and was “sick” and “not doing well. He's okay, he's alive, and that's all that matters to me.” She noted that Nipper was “not skipping out on Court or anything like that, he truly was just nervous, and then he – I don't know what happened.”

The trial court then queried whether Nipper was “capable of discharging himself.” His counsel responded, “[B]ased upon my observation of him this morning, no, he was not remotely able to get out of bed. I don't think he'll be getting out of bed for a while.” The court asked whether someone from the hospital could confirm that, and counsel said he had provided the court all the information the hospital would release to him.

The prosecutor then remarked:

[S]omebody needs to go up to the hospital. I mean, the burden's on the Defense to show that this wasn't voluntary. Everything the witness just stated sounds very voluntary to me. He was nervous about coming to trial, got drunk, probably passed out, but it sounds like he's okay and he's alive and well, so he needs to get here. I'm not trying to sound heartless, but I recognize what he's facing, and he knows what he's facing, and it's hard to think that this was anything other than just an attempt to not have to be here based on what she just told us.

Nipper's counsel retorted that the conduct instead violated his pre-trial release conditions and constituted a failure to appear. The consequence for that, counsel explained, was revocation of Nipper's bail and commitment of him to jail to await trial after being discharged from the hospital. Counsel again noted his need for Nipper's testimony, which at the time would not be available because of the hospitalization.

A key fact here, one that we will come back to shortly, is the following: The trial court gave Nipper's counsel one hour to determine whether Nipper could be discharged from the hospital, but it remarked that the situation was “highly unusual,” given the prior continuance requests that the court had denied. Counsel protested that “there's no way I can get him here in an hour.” At that point, the court reassured counsel, “No, or at least confirm from the hospital that he cannot leave the hospital, and from there we'll pick a time when the trial can start with the jury that has been picked and sworn.” (emphasis supplied). The court clarified further: “If he's awake, he can otherwise give whatever limited release as necessary to demonstrate what the condition is and whether he is even capable of standing trial today or if the date needs to be continued, but we're going to need more information than what the friend has provided.” (emphasis supplied).

Nipper's counsel returned with a hospital record that had the phone number for the nurses’ station. The court called and got on the line with a nurse, who explained that Nipper had not been released by the attending doctors for discharge. The court asked if Nipper was admitted for drugs or alcohol, and the nurse explained that Nipper's diagnosis on admission was aphasia, or difficulty breathing. The nurse also disclosed to the court that Nipper had “several orders listed” for the nurses to conduct “CO protocols,” which would be “for alcohol.” She also explained that Nipper was “on aspiration precautions.” Upon further query from the State, the nurse clarified that Nipper could not be discharged because a doctor had not yet cleared him for that, but that Nipper “just arrived to us at four something this morning, so the doctor may not have rounded on him yet. ․ He was seen in the ER, but the doctor for this morning has not rounded.”

In support of a continuance, Nipper's counsel pointed out that Nipper's situation was like that found in a decision out of the Fourth District Court of Appeal, Reynolds v. State, 313 So. 3d 129 (Fla. 4th DCA 2021). In that case, the defendant was in the hospital, bedridden while awaiting surgery, and thus absent from his sentencing hearing. The court reversed and remanded for a new sentencing hearing because the trial court had proceeded without the defendant even though the absence was involuntary.

The prosecutor responded by pointing to the computer-aided dispatch (“CAD”) notes from police, which detailed the events that had occurred a few hours earlier: Nipper was unconscious and turned blue; CPR was performed; EMS administered Narcan twice; Nipper had a pulse but presented with agonal ¹ breathing; and Nipper tested positive for methamphetamine. Additional notes from the hospital records revealed that Nipper “was admitted after apparent unintentional overdose,” “has an acute kidney injury,” “has changes on his EKG,” and is “currently undergoing cardiac evaluation.” (emphasis supplied).

The prosecutor and Nipper's counsel had differing takes on these facts. The prosecutor focused on what she perceived to be Nipper's bad choices that resulted in his absence: “Yes, he had trouble breathing because he got drunk and took drugs the morning of his trial so that he did not have to be here. I don't know that there's anything that's not voluntary about making those two choices knowing what I guess is awaiting you, in his mind at least.” Nipper's counsel, by contrast, zeroed in on the inescapable fact that Nipper was in the hospital and “whatever the basis, if male [sic] is turning blue, possible drug overdose, this does not seem like something where he's going to be able to be here this morning.”

Even though the trial court originally had merely sought proof that Nipper physically was incapable of appearing in court—again, having told counsel of the need to “at least confirm from the hospital that [Nipper] cannot leave”—the court relied on Nipper's “voluntary choice to consume alcohol or drugs” to find that the resulting hospitalization was akin to a voluntary absence, focusing on the voluntariness of the conduct that led to the absence rather than the voluntariness of the actual absence. The trial court explained:

Mr. Nipper was aware that trial was going to start today as he had sat through jury selection on Monday, and also was aware previously from the denial of the continuances that trial was going to occur today. I am going to find his absence is voluntary and we will proceed today with trial. Should he be discharged, he is to come here and obviously participate in the trial, but trial is going to continue per the rule as if the Defendant were present. Let's go ahead and bring in the jurors, we'll go through preliminary instructions, and then start with the testimony.

(emphasis supplied). There was no evidence that Nipper overdosed in order to stop the trial, and the trial court made no such explicit determination.

After going through preliminaries for the remainder of the morning and before breaking for lunch, the court noted for counsel that the State's first witness will go on in the afternoon when they return, confirmed with the State that it expects to finish its case by the end of the day, and reminded counsel that “if your client is discharged, he does need to be here when we start at 1:15.”

Following the break, but before the State put on its first witness, Nipper's counsel announced that he had “a medical update. I have documentation from the hospital”:

Patient was admitted after apparent unintentional overdose. He received CPR in the field before arriving to the hospital. Acute kidney injury and changes on his EKG. He is therefore currently undergoing a cardiac evaluation. The patient is not medically cleared to leave the hospital. He is undergoing additional testing for the above-issues.

(emphasis supplied). The prosecutor remained unmoved by the circumstances: “I think the court's prior ruling still stands. It doesn't change how he got himself in this situation to begin with and why he got himself in the situation.” (emphasis supplied). The trial court appeared to agree, again focusing on the voluntariness of the conduct that preceded the hospitalization, rather than the voluntariness of the hospitalization:

Again, so the ruling is clear at this stage, Mr. Nipper was present for jury selection with Judge Hankinson on Monday, and that date – let me make sure I have it correct – that date was Monday, April 18th. Mr. Nipper was aware of the trial date being today, which is Thursday. On Wednesday evening, through voluntary means, he consumed alcohol and drugs leading to the situation where he is now in the hospital unfortunately; however, I am going to find that he voluntarily absented himself from the proceedings.

(emphasis supplied).

In one last effort to stop the trial from proceeding without his client, counsel made the following argument:

If I were to go mountain climbing and fall and break my arm the day before trial, I would say that is not voluntarily me not showing up. The fact is, we have documentation showing that it was an involuntary overdose, and regardless of that, we have documentation showing that the hospital is saying he is not cleared to be released. Client has a right to be present at all stages. I would say going forth is – abrogates his Sixth and Fourteenth Amendment rights, and that the Defendant's waiver of presence must be knowing, intelligent, and voluntary. He very much wants to be here for this trial, he's not able to be released from the hospital on that grounds in what we have seen right there, and I would ask the Judge to reconsider.

(emphasis supplied). The trial court responded: “The objection is noted; however, you're equating an accident while exercising to consuming alcohol and drugs, Mr. Stevenson?”

This last response from the trial court brings into finer focus what all the emphases added to the preceding transcript excerpts highlight: that—in allowing the State to present its case to the jury while Nipper was not there—at the heart of the trial court's decision was not whether Nipper could leave the hospital and come to the trial (the evidence showing he could not, a fact repeatedly acknowledged by the trial court), or even whether the overdose was intentional to avoid trial (again, the only evidence indicating to the contrary); but the acceptability of the conduct that led to the hospitalization. That is, the trial court concluded Nipper was “voluntarily absent[ ]” based on the voluntariness of the illicit conduct that set in motion the events leading to Nipper's involuntary absence from trial.

The trial commenced without Nipper. The State presented its case, calling the responding officer, the officer's partner, the victim of the battery, and the victim's roommate. Nipper's counsel cross-examined each witness presented by the State. At the conclusion of the State's case, the court told the jury that the trial would break for the day. After the jury left, the court remarked, “Tomorrow morning when we resume hopefully Mr. Nipper is discharged so he has his opportunity to testify if he's going to be available.” (emphasis supplied).

The next morning, Nipper and his counsel appeared at trial, and counsel gave to the court hospital documents showing Nipper had left the hospital “against medical advice,” at the direction of counsel, because “no matter what the medical situation is, it's actually more important he be here for this. So he is here this morning.” Counsel asked, though, if Nipper could “return himself to the hospital, as they were not remotely happy about him leaving. I believe the documentation I provided you says there are kidney and cardiac issues.” Rather than engage in a colloquy with Nipper about whether he had consented to the trial going forward without him the day before, the trial court clarified that the “discharge against medical advice” meant that the hospital staff thought Nipper “should just stay and not leave the hospital?” Counsel responded:

Exactly. ․ The doctor did see him after we talked to the nurse's station at 10:00 but I guess before 1:00․ They say he has the issues that they list. ․ They were very not happy about him leaving, but I made clear to them, this is actually going to be more important to his well-being to testify. ․ [A]nd they said, we want you to check yourself back in ․ [W]e want him to check himself back into the ER as soon as possible.

The court then remarked: “[A]ny issues that were either respiratory or kidney based were brought by the voluntary consumption of the substances on Wednesday night, that's correct?” (emphasis supplied).

Nipper presented his case and testified on his own behalf; he also called the owner of the mobile home that the victim was renting at the time. At the end of Nipper's presentation, his counsel restated his request to have Nipper return to the emergency room, as directed by hospital staff. The court asked Nipper if he understood that the trial would continue regardless, and Nipper said he understood. The court explained to Nipper that it was revoking his bail, but he could “go to the hospital to get the care that you need. The deputies will escort you to the hospital. Once you are released, you're in custody.” Nipper's counsel then renewed his objection to the finding of Nipper's voluntary absence on the first day of trial, but he explained that he was not objecting to any finding of voluntary absence on the second day.

The jury found Nipper guilty of burglary as charged; it specifically found that during the burglary, he committed an assault and a battery in a dwelling. The jury also found Nipper guilty of battery on a person sixty-five years or older. The court adjudicated Nipper guilty and sentenced him to life. Nipper moved for a new trial and argued, in part, that the court should not have proceeded with the trial on day one while Nipper was in the hospital. The court denied the motion.

II

The argument that carries the day for Nipper concerns the trial court's allowing the State's case-in-chief to proceed without Nipper's being there in court. According to Nipper, the trial court's decision violated his Sixth and Fourteenth Amendment rights to be present at every critical stage of the criminal proceedings against him. He contends that he was denied both his right to confront his witnesses and his right to due process when the trial court let the State go forward to prove its case against Nipper in his absence. We agree. Nipper's conduct—occurring outside the courtroom, without any demonstrated intent to disrupt the proceeding—did not operate as a waiver or forfeiture of these fundamental rights.

A

“[T]rial by jury is a fundamental guaranty of the rights and liberties of the people.” Hodges v. Easton, 106 U.S. 408, 412 (1882); see U.S. Const. amend. VI; Art. I, § 16, Fla. Const.; cf. Art. I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain inviolate.”); Dimick v. Schiedt, 293 U.S. 474, 485–86 (1935) (noting that the “right of trial by jury is of ancient origin, characterized by Blackstone as ‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy,’ ” such that “any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care” (internal citation omitted)). Indeed, one of the original grievances set forth in the Declaration of Independence was the deprivation of “the benefits of Trial by Jury.” The Declaration of Independence para. 2 (U.S. 1776).

Essential to a fair trial is the “fundamental right” of a criminal defendant “to confront the witnesses against him,” such that the right “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965). And “[o]ne of the most basic of the rights” that constitute the right to confrontation “is the accused's right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970); see Muhammad v. State, 782 So. 2d 343, 351 (Fla. 2001) (“Criminal defendants have a due process right to be physically present in all critical stages of trial ․”); Godwin v. State, 501 So. 2d 154, 155 (Fla. 1st DCA 1987) (“The defendant has a right to be present at all critical stages of his trial including jury selection.”); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969) (noting that the right to be present is a federal constitutional right).

A defendant, though, “may waive constitutional rights.” Blair v. State, 698 So. 2d 1210, 1213 (Fla. 1997); see also Tucker v. State, 559 So. 2d 218, 219 (Fla. 1990) (“[E]ven fundamental constitutional rights can be waived when a defendant so chooses.”); cf. Boykin, 395 U.S. at 242–43 (explaining how a guilty plea waives several constitutional rights and describing what is required before the waiver can be valid). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (emphasis supplied). For a waiver of a constitutional right to be valid, it “not only must be voluntary but must be [a] knowing, intelligent act[ ] done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); see Tucker, 559 So. 2d at 219 (“An effective waiver of a constitutional right must be voluntary, knowing, and intelligent.”). “The determination of whether there has been an intelligent waiver of [a constitutional right] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson, 304 U.S. at 464. This determination is “governed by federal standards,” and under federal standards, waiver will not be presumed “from a silent record.” Boykin, 395 U.S. at 242−43 (requiring that the record show that the defendant was made aware of the constitutional right and he “intelligently and understandingly rejected” taking advantage of it; stating “[a]nything less is not waiver”) (citation omitted); see also Chames v. DeMayo, 972 So. 2d 850, 860–61 (Fla. 2007) (noting the “detailed colloquy judges must recite to confirm that the defendant knows the consequences of pleading guilty instead of going to trial” or to confirm the waiver by a party of other constitutional rights); Fla. R. Crim. P. 3.180(b)(2) (providing for “waive[r of] physical attendance in writing or on the record” as long as “the court accepts the waiver”).

While a waiver typically will occur expressly, through a party's words, it also may be “inferred from conduct or acts.” Rader v. Prather, 130 So. 15, 17 (Fla. 1930). Even so, the United States Supreme Court has warned that courts are to indulge “every reasonable presumption against waiver” of fundamental rights. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937); Brookhart v. Janis, 384 U.S. 1, 4 (1966) (noting a “presumption against the waiver of constitutional rights” and need for an “effective” waiver to “be clearly established”). In turn, before waiver can be inferred, “[i]t is necessary that the acts, conduct, or circumstance relied upon to show waiver [ ] make out a clear case.” Masser v. London Operating Co., 145 So. 79, 84 (Fla. 1932) (equating “waived” with “intentionally relinquished”).

For this reason, when the United States Supreme Court and our supreme court have found a waiver of the right to be present at trial because a defendant voluntarily had absented himself from a proceeding, they did so after demonstration in the record that the defendant both knew of his right to be present and intentionally chose to give up that right. Cf. Diaz v. United States, 223 U.S. 442, 453, 455 (1912) (basing determination on fact that defendant “sent to the court a message expressly consenting that the trial proceed in his absence, which was done”); Israel v. State, 837 So. 2d 381, 387 (Fla. 2002) (finding that voluntary absence was waiver, but only after the trial court repeatedly questioned the defendant on the record about his decision to ensure his awareness of this right to be present). The analysis in Israel v. State in fact illuminates the colloquy necessary for the trial court to confirm that a defendant's absence is truly a waiver, a colloquy that informs the defendant of the right and the consequences of giving up that right, one that ensures that the defendant is intelligently relinquishing that known legal right. See 837 So. 2d at 386–87.

Indeed, the supreme court's keying in on the necessity of express voluntariness to support waiver can be seen in the following excerpt:

[T]he record shows that Israel voluntarily chose to remain outside the courtroom in his holding cell for most of Monday and all of Tuesday as trial proceedings continued. After Israel asked to be taken to his holding cell on Monday, the trial court questioned him on the record about his decision, recommending to Israel that he remain in the courtroom and assuring him that he would be welcome back at any time. Likewise on Tuesday, the trial court questioned Israel to determine whether he wished to come into the courtroom but Israel refused to answer. The trial court made a conscientious effort to ensure that Israel was aware of his right to be present, and made it very clear to both defense counsel and Israel that Israel could rejoin the proceedings at any time. We find that because Israel's absence from the courtroom was voluntary, he waived his right to be present during jury selection on Tuesday. The trial court did not err in conducting jury selection while Israel chose to remain in his holding cell.

Id. at 387 (emphases supplied).

No such colloquy took place between the trial court and Nipper about his absence during the State's presentation of its case—even after the fact, when Nipper appeared in court for the second day of trial—to determine whether Nipper had intended to waive his right to be present. Cf. Ohio Bell Tel. Co. v. Pub. Utils. Comm'n of Ohio, 301 U.S. 292, 307 (1937) (“As there was no warning of such a course, so also there was no consent to it. We do not presume acquiescence in the loss of fundamental rights.”). Rather than engage Nipper directly while he was in the courtroom, the trial court—after his counsel had just explained that Nipper left the hospital “against [ ] medical advice” and medical staff “want[ed] him to check himself back into the ER as soon as possible”—told Nipper, “You don't have to speak.” Nothing in the record supports a determination that Nipper effected a waiver of his right to be present during the State's presentation of evidence against him.

B

Procedural forfeiture also could provide a basis for the trial court's allowing the State to proceed without Nipper. Courts oftentimes use the terms “waive” and “forfeit” interchangeably, but forfeiture is something different. See Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 895 n.2 (1991) (Scalia, J., concurring in part) (noting how the Supreme Court “uses the term ‘waive’ instead of ‘forfeit’ ․ so often ․ interchangeably” but explaining how the “two are really not the same”). Forfeiture “occurs by operation of law without regard to the defendant's state of mind”—sometimes as a consequence for a procedural default, sometimes as a penalty for failing to hew to some procedural or substantive requirement. Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214, 1238–39 & n.50 (Apr.–May 1977) (examining Supreme Court decisions regarding the effect of a guilty plea on the ability to raise constitutional defenses later, including those that the defendant was unaware of when he entered a plea; and, in that context, explaining why a plea constitutes a forfeiture by operation of law rather than a waiver); see generally Fay v. Noia, 372 U.S. 391, 426 (1963) (discussing the concept of forfeiture by procedural default, regardless of intent).

Procedural forfeiture can be found when a party misses a jurisdictional deadline, or when a party fails to raise a constitutional objection at trial or make an argument in the initial brief on appeal. See, e.g., Yakus v. United States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make [a] timely assertion of the right before a tribunal having jurisdiction to determine it.”); Donin v. Goss, 69 So. 2d 316, 318 (Fla. 1954) (“Unless an appeal is taken within the prescribed time, this Court has no jurisdiction whatever.”); State ex rel. Copeland v. Mayo, 87 So. 2d 501, 503 (Fla. 1956) (“Since the point now presented has not been previously raised, despite ample opportunity to do so, under well settled rules of decisions, we are driven to the conclusion that he has waived or forfeited the right to raise it.”); cf. Freytag, 501 U.S. at 894–95 (Scalia, J., concurring in part) (positing that procedural forfeiture “is essential to the orderly administration of justice” (internal quotation and citation omitted)).

Forfeiture of a constitutional right also may be found as a response to a party's abuse of the judicial process. See, e.g., State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (characterizing the pro se “filing [of] repetitious and frivolous pleadings” as “diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims,” such that a court may find a forfeiture of the right to further pro se access in order to prevent the abuse, provided a court first gives the party “notice and an opportunity to respond”); Clark v. Baney, 355 So. 3d 976, 979 (Fla. 1st DCA 2023) (approving trial court's “sanctioning [of] a chronically abusive pro se litigant” by barring further pro-se court filings; recognizing that pro-se litigant's “egregious conduct”—which undermine[d] the court's ability to fulfill its constitutional duties—“forfeited his right to proceed without counsel”); see generally Sibley v. Fla. Jud. Qualifications Comm'n, 973 So. 2d 425, 426 (Fla. 2006) (“This Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant.”).

Abuse or disruption of the judicial process—warranting forfeiture of a constitutional right—can occur with respect to the trial itself. See Allen, 397 at 338 (framing the question before the Court as “whether an accused can claim the benefit of this [“most basic”] constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial”; answering in the negative); Davis v. Washington, 547 U.S. 813, 833 (2006) (“[O]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”); see also Westen, Away from Waiver, 75 Mich. L. Rev. at 1239 n.50 (discussing—in the context of a broader examination of Supreme Court decisions on waiver of constitutional defenses through pleas—Illinois v. Allen and idea of forfeiture by misconduct, such that despite his desire to remain in the courtroom, in the face of his misconduct, the defendant's “constitutional right to be present [in the courtroom during trial] was outweighed by the state's overriding interest in being able to proceed with the trial in an orderly fashion”; making the forfeiture a “penalty for violating certain obligations or conditions,” rather than a function of the defendant's agreeing or intentionally relinquishing the right to be present (citing Y. Kamisar, W. Lafave & J. Israel, Modern Criminal Procedure 1345 (4th ed. 1974) and quoting Y. Kamisar, Memorandum on Uniform Rules of Criminal Procedure 5–6 (April 1972))).

Allen demonstrates how disruption of the trial can work a forfeiture of the right to be present, the Court therein holding

that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.

Allen, 397 U.S. at 343; but see id. (noting that the lost right to be present can “be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings”). According to the Court, “[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Id. Courts, in turn, “must be given the discretion to meet the circumstances of each case” in which a judge is “confronted with disruptive, contumacious, stubbornly defiant defendants.” Id.²

At all events, this idea of forfeiture is “grounded in the ability of courts to protect the integrity of their proceedings.” Giles v. California, 554 U.S. 353, 374 (2008) (internal quotation and citation omitted). It is not simply to impose a punishment for misconduct or wrongdoing occurring outside the courtroom. Cf. Jackson v. Fla. Dep't of Corr., 790 So. 2d 398, 401 (Fla. 2001) (“Clearly, when a court sanctions a litigant for actions committed in its court, it is not charging or convicting the person of a violation of criminal or civil laws, it is merely enforcing its judicial authority.”). To find a forfeiture, then, the trial court must determine that the wrongdoing was directed at disrupting the trial—which is more than the disruption of the trial being a mere consequence of the wrongdoing. Cf. Giles, 554 U.S. at 359–60 (explaining that the common-law forfeiture rule “applied only when the defendant engaged in conduct designed to prevent the witness from testifying”); id. at 368 (noting that the forfeiture rule at common law did not apply to allow testimony of murder victim when the defendant “was not shown to have done so for the purpose of preventing testimony”). If it were the latter (the disruption happening to be the coincidental result of out-of-court misconduct), the court would be punishing the defendant for uncharged and untried conduct. Cf. Hodges, 106 U.S. at 412 (“That right [to a jury trial] could have been waived, but it could not be taken from them by the court.”); Giles, 554 U.S. at 365 (“The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to dispensing with jury trial because a defendant is obviously guilty.” (internal quotation and citation omitted)).

The record is clear that the trial court in this case did not deem Nipper's absence a forfeiture in order “to protect the integrity of” the trial but as a sanction for engaging in wrongful conduct that coincidentally impacted the proceeding. Before the trial court could find a forfeiture, however, it would have had to find that Nipper's wrongdoing was directed at the trial proceeding with the intent to disrupt it. Cf. Reynolds v. United States, 98 U.S. 145, 158–59 (1878) (explaining that when a defendant has “corruptly kept away” from trial a witness against him, the “Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts” directed at the proceeding); Davis, 547 U.S. at 833 (noting that defendants “have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system,” so a defendant's wrongfully obtaining the absence of a witness “forfeits [his] constitutional right to confrontation”); Giles, 554 U.S. at 359–62 (emphasizing that the “forfeiture by wrongdoing” rule is limited to conduct “designed” to disrupt the trial proceeding and does not apply to conduct that incidentally disrupts or interferes with the proceeding).

When a defendant, like Nipper, “was at large on bail, was present when the trial was begun ․ and then fled the jurisdiction,” at trial then being “called and defaulted,” the trial may proceed in his absence, the absence at that point permissibly treated as a forfeiture. Diaz, 223 U.S. at 457 (internal quotation and citation omitted); cf. Fla. R. Crim. P. 3.180(c)(1) (allowing for trial to proceed in the absence of the defendant if “the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial”); Daniels v. State, 587 So. 2d 460, 461 (Fla. 1991) (holding that under Florida Rule of Criminal Procedure 3.180(b), “if a defendant voluntarily absents himself from trial after the commencement of jury selection, that defendant cannot complain of the continuation of his trial to conclusion”).

The Supreme Court set out the following rationale for forfeiture in these situations:

It does not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it.

Diaz, 223 U.S. at 457 (internal quotation and citation omitted). Put simply, when a defendant is out on bail, knows when the trial is scheduled to start, and “absconds” or otherwise chooses to be a no-show, the trial court can find a forfeiture to avoid allowing the defendant to “with impunity defy the processes of that law, paralyze the proceedings of courts and juries, and turn them into a solemn farce.” Id. at 457–58; accord State v. Melendez, 244 So. 2d 137, 139 (Fla. 1971) (holding that “where a defendant absents himself during his trial, with knowledge that his trial is underway, his absence shall not be permitted to interrupt the proceedings”; noting that “[t]he orderly administration of criminal justice and the protection of society require that a trial, otherwise valid, should not be aborted by a defendant's voluntary nonparticipation” (emphasis supplied)); Capuzzo v. State, 596 So. 2d 438, 440 (Fla. 1992) (explaining that, consistent with the rationale of Florida Rule of Criminal Procedure 3.180, a “defendant cannot claim lack of an express waiver” under circumstances in which he “absents himself or herself by fleeing the court's jurisdiction”).

Nipper “was present in court ․ when the jury was impaneled and sworn,” and “he was out on bail and hence entitled to come and go as he pleased,” so his absence from the courtroom at the start of the State's case properly was presumed to be voluntary, the burden then falling “upon him to show the contrary.” Mulvey v. State, 41 So. 2d 156, 157 (Fla. 1949). To avoid forfeiture of his right to be present, Nipper could “not remain silent” and later “take advantage of [his absence] to vitiate the trial.” Id. at 157–58 (noting that the criminal defendant “made no attempt to explain the reason for his absence, either in his motion for new trial or when ․ he was brought into open court” and “[i]ndeed, to this very day no claim or showing has been made by him that his absence from the courtroom was other than voluntary”; characterizing as “manifestly untenable” the defendant's approach of avoiding any explanation for his absence and instead electing “to stand on the naked ground that his mere absence from the courtroom under whatever circumstances operated to stalemate the proceedings and render any further steps taken in his absence completely nugatory and void”). Far from remaining silent on the matter, Nipper's counsel provided ample explanation—through a witness who found Nipper unresponsive and an attending nurse who could speak to Nipper's current medical status in the hospital—for why he was not present in court: He was in the hospital for a medical emergency and had not been discharged. In fact, the trial court received the documented explanation it had originally requested.

We agree with the conclusions reached by the Second and Fourth Districts in similar situations, involving a defendant's absence from a trial or sentencing proceeding because of a demonstrated hospitalization: Unless the State can show the hospitalization is a ruse by the defendant to interfere with the proceeding, the resultant absence from the proceeding is not voluntary and does not support a forfeiture of the fundamental right to be present. See Miller v. State, 833 So. 2d 318 (Fla. 2d DCA 2003); Reynolds v. State, 313 So. 3d 129 (Fla. 4th DCA 2021). In Nipper's case, the State failed to proffer any evidence that he purposely overdosed to get admitted to the hospital and stop the trial. The most that can be inferred from what was presented to the trial court is that Nipper engaged in terribly reckless behavior that nearly killed him—but fortunately did not. The behavior undoubtedly was a violation of the conditions of Nipper's pre-trial release, and the trial court appropriately sanctioned Nipper by revoking that release. But the trial court erred when it relied on the voluntariness of Nipper's misconduct—without more—as a substitute for the clear involuntariness of his absence to find, essentially, a “forfeiture by wrongdoing.”³ The judicially developed forfeiture doctrine does not extend this far.

III

Even though we have found error, we still must determine whether it was “harmless.” See § 924.33, Fla. Stat. (precluding reversal “unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant”); State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”); Goodwin v. State, 751 So. 2d 537, 545 (Fla. 1999) (“Whether or not counsel are helpful, it is still the responsibility of the court, once it concludes that there was error, to determine whether the error affected the judgment.”). We note that the supreme court has not treated error like what we have here as per se reversible. See Francis v. State, 413 So. 2d 1175, 1178 (Fla. 1982) (applying harmless-error analysis to trial court's erroneously allowing jury selection to proceed in the defendant's absence); Garcia v. State, 492 So. 2d 360, 363–64 (Fla. 1986) (applying harmless error analysis to trial court's erroneously proceeding with substantive motion hearing without the defendant's being present).

The State offers nothing in the way of a proffer on how Nipper's absence during the whole of its case-in-chief did not “frustrate[ ] the fairness of the proceeding.” Garcia, 492 So. 2d at 363. On these facts, we cannot say beyond a doubt that Nipper's absence during the presentation to the jury of the State's entire case against him did not vitiate the fairness of both the trial proceeding and the judgment of conviction it produced. See Goodwin, 751 So. 2d at 545–46 (highlighting the importance of an appellate court exercising judgment in determining whether error rises to the level of being reversible); Kotteakos v. United States, 328 U.S. 750, 759–60 (1946) (explaining that the objective of harmless-error statutes is “to substitute judgment for automatic application of rules” and “to preserve review as a check upon arbitrary action and essential unfairness in trials”); see also State v. Clark, 614 So. 2d 453, 454 (Fla. 1992) (under harmless-error analysis, the appellate court is to look to the effect of the error “on the underlying fairness of the trial,” while ignoring “the virtually inevitable presence of immaterial error” (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986))); DiGuilio, 491 So. 2d at 1135 (noting that any assessment of whether an error supports reversal must be rooted in a “concern[ ] with the due process right to a fair trial”). We certainly cannot “assess the extent of prejudice, if any, [Nipper] sustained by not being present to consult with his counsel during the time” all the State's witnesses testified against him and the time his counsel then had to cross-examine them, so we conclude the error is reversible, entitling Nipper to a new trial. Francis, 413 So. 2d at 1179.

Reversed; Remanded for a new trial.

I concur fully in the majority opinion. I write only to respond to the dissent's commentary on the time it has taken for this three-judge panel to render a decision in this case. The dissent notes that this appeal was filed in May 2022. A fuller and more accurate understanding of the time it took for the panel to render a decision in this case requires consideration of a few other dates and of fundamental principles of the exercise of judicial power.

First, the parties did not complete briefing in this case until late November 2022. And then, for reasons the panel is not at liberty to explain, oral argument was not scheduled until August 2023.

What then of the remaining time to render a decision in this appeal? Florida Rule of General Practice and Judicial Administration 2.250(a)(2) establishes 180 days from the oral argument date as the “presumptively reasonable” time for the Florida Supreme Court and the district courts to render a decision. Even so, the rule expressly recognizes that “there are cases that, because of their complexity, present problems that cause reasonable delays.” Fla. R. Gen. Prac. & Jud. Admin. 2.250(a). As the trial court observed, this is not a run-of-the-mill case. The parties point out that the issue in the case is one of first impression in Florida. The over thirty pages of opinions from the majority and dissent demonstrate the complexity of the issue and the panel's conclusion that our decisions warranted explanation to the parties, the bench, and the bar.

When considering the time it took for the panel to render a decision in this appeal, it is also important to understand the particular role of the district courts under our constitution. “The Florida Supreme Court is a court of limited jurisdiction ․ with authority to hear only those matters specified in Florida's Constitution.” See Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citations omitted); Art. V, § 3(b), Fla. Const. For the vast majority of cases, then, the district courts are the courts of last resort. And that is by design. The district courts of appeal “were never intended to be intermediate courts.” Johns v. Wainwright, 253 So. 2d 873, 874 (Fla. 1971). Rather, “[i]t was the intention of the framers of the constitutional amendment which created the District Courts that the decision of those courts would, in most cases, be final and absolute.” Id.

Appeals from final orders to the district courts of appeal are available under the Florida Constitution as a matter of right. See Art. V, § 4(b), Fla. Const. Many cases before the district courts are complex and present questions of first impression. And so, wielding the judicial power granted us under Article V is serious business; we are not making widgets. As a matter of judicial integrity and humility, judges must strive to render decisions consistent with the motto shared by our court and the Florida Supreme Court: Sat cito, si recte. The supreme court has explained that it takes time for courts to exercise judgment and cautioned that there are “no shortcuts to justice”:

The legal principles and constitutional rights which have preserved us a nation are either observed or they are violated. No matter how well intended, there cannot be any ‘homespun’, ‘living room’ approaches to matters of such grave consequence to one's freedom. It may take more time of a busy court but as the inscription on our own Supreme Court Seal reminds us: Sat Cito Si Recte—Soon enough if correct.

Keller v. State, 265 So. 2d 497 (Fla. 1972).

In this case involving grave consequences to the defendant's liberty—a conviction resulting in a mandatory life sentence—the court took the time needed to determine that the decision was correct.

This appeal was filed in May of 2022. I dissent from the delay in deciding it, and dissent on the merits as well.

A jury convicted Appellant of burglary of a dwelling during which he battered his neighbor, who was age 65 or older. The two men had a recent history of conflict following a remote history of friendliness. The victim testified that he was afraid of Appellant and that Appellant was violent. Appellant had been trespassed from the victim's property three times in recent years. Appellant nevertheless showed up at the victim's house in a rage, and the victim tried to keep him out. Appellant pushed the victim inside, threw him to the floor, threatened to kill him, and scuffled with him, ultimately causing a deep laceration to the victim's arm. The victim's roommate supported the victim's side of the story.

Appellant's story was that he was just very drunk when he went to the victim's front door—“Twelve pack Corona and a bottle of Tequila drunk.” He went to get cigarettes the victim had promised him. At the doorway, he tripped and accidentally fell on the victim so that they both fell inside, injuring the victim. He admitted having said he would kill the victim, but claimed he did not really mean it but was just trying to make the victim calm down.

Appellant was a prison releasee reoffender at the time of the crime. He is now serving a life sentence and a concurrent five years in state prison. This is his direct appeal. He raises three issues, all reviewed for abuse of discretion. He argues first that the trial court abused its discretion in finding him voluntarily absent on the first day of trial when he was hospitalized for alcohol intoxication and drug overdose. Second, he challenges the trial court's ruling on objections to the prosecutor's closing argument. Finally, he argues the trial court should have given a special instruction that burglary requires knowing or voluntary entry into the dwelling. I would reject his arguments and affirm his judgment and sentence.

1. Voluntary Absence from Trial.

(a) Facts.

Appellant was released on bond while awaiting trial. His case had been pending over two years, and he requested continuances as the trial date approached, but the trial court denied them. Appellant attended jury selection and swearing-in three days before trial, and knew trial would start on Thursday. Come Thursday morning, however, Appellant failed to show up. Appellant's counsel advised the court that Appellant was in the hospital. Counsel presented telephone testimony from one of Appellant's friends, who said that she knew Appellant had been drinking the night before because he was nervous about the trial. She let him stay at her place while she went out. When she returned two hours later, she found Appellant passed out “blue and dead.” She attempted resuscitation, and called 911. Emergency services took Appellant to the hospital around 4:00 Thursday morning. He was drunk and had overdosed on methamphetamine.

The trial court allowed Appellant's counsel more time to get information from the hospital. The court spoke directly to a nurse at the hospital, who confirmed that Appellant was being treated for alcohol-related conditions and was not cleared to leave. Appellant's counsel requested and received another short continuance, obtaining and submitting emergency-service and hospital records stating that Appellant had field-tested positive for methamphetamine and received two doses of Narcan. He was revived, and treated for alcohol ingestion, but could not leave the hospital. Additional hospital records obtained and submitted after another recess reflected that Appellant was admitted after “apparent unintentional overdose,” with resultant kidney and cardiac injuries subject to additional testing, and was not cleared to leave the hospital.

The State argued that Appellant's absence was voluntary and trial should proceed, and Appellant's counsel argued the opposite. The trial court ruled that Appellant's absence was voluntary because Appellant chose to ingest alcohol and a drug.

Court convened at 1:15 p.m. with Appellant still absent. The court did not explain Appellant's absence to the jury. That afternoon, the State arraigned him on a third count on the third amended information (trespass after warning), the court instructed the jury, and counsel presented opening statements (without mentioning why Appellant was absent). The State put on all of its witnesses, including the deputy sheriff who responded to the underlying 911 call and arrested Appellant; then the victim and the victim's roommate.

Appellant attended the second day of trial by leaving the hospital against medical advice. Appellant's counsel renewed the previous day's objection to the court's having conducted the first half-day of trial in Appellant's absence, and added an objection to Appellant's having to testify given his medical condition. The court overruled both objections, revoked Appellant's bond, and warned that any further absence would result in his arrest. Appellant testified, and was present for testimony of another neighbor who testified to a generally good relationship between Appellant and the victim. Appellant then complained of chest pain from the CPR, and was escorted back to the hospital. Appellant thus missed, without objection, the charge conference, jury instructions, and closing arguments. Appellant returned to court for rendition of verdict, was present when sentencing was set for the following week, and was present at sentencing.

Defense counsel did not object to Appellant's “voluntarily absenting himself” the afternoon of the second day of trial. Counsel made it clear that the objection to proceeding in Appellant's absence related solely to the first half-day of trial.

(b) Governing Law.

Appellant had a constitutional right to be present at his own trial. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him ․”); Id. amend. XIV, § 1 (due process clause); Fla. Const. art. 1, § 9 (same). Florida Rule of Criminal Procedure 3.180(a) implements that right, requiring that a criminal defendant be present during jury selection; at all proceedings when the jury is present and when evidence is presented outside the presence of the jury; at any jury view; and at verdict, judgment, and sentencing.

Rule 3.180(b) goes on to state that “presence” includes physical attendance in the courtroom, and that presence can be waived in writing or on the record if the court accepts the waiver and the defendant appears electronically.⁴ Rule 3.180(c)(1) provides that if a defendant is voluntarily absent from trial, the proceedings shall not be postponed or delayed, but shall go forward “in all respects as though the defendant were present in court at all times.”

Like all rights, even constitutional ones, the right to be present at trial can be waived. See e.g., Diaz v. United States, 223 U.S. 442, 455 (1912) (noting “prevailing rule” that voluntary absence operates as a waiver of the right to be present); Israel v. State, 837 So. 2d 381, 387 (Fla. 2002) (noting that “[a] defendant can waive his right to be present by voluntarily absenting himself from the courtroom,” and finding a voluntary waiver by defendant who chose to remain in his holding cell); Capuzzo v. State, 596 So. 2d 438, 440 (Fla. 1992) (recognizing the “well-established principle that defendants may voluntarily waive their right to be present during crucial stages of the trial”); Peede v. State, 474 So. 2d 808, 814 (Fla. 1985) (“We now hold that just as in noncapital cases, the presence requirement is for the defendant's protection and, just as he can knowingly and voluntarily waive any other constitutional right, a defendant can waive his right to be present at stages of his capital trial if he personally chooses to voluntarily absent himself.”).

The defendant has the burden to establish voluntariness. Mulvey v. State, 41 So. 2d 156, 157 (Fla. 1949); Godwin v. State, 501 So. 2d 154, 155 (Fla. 1st DCA 1987). The trial court should take evidence on the issue as well as it can under the circumstances presented, which by definition likely will involve short notice and less-than-ideal witness availability. See Hilliard v. State, 169 So. 3d 264, 265 (Fla. 2d DCA 2015) (remanding for determination of voluntariness of defendant's absence that occurred two weeks after he had been Baker-acted, where he had a history of mental illness); Blair v. State, 25 So. 3d 46, 48 (Fla. 5th DCA 2009) (remanding for evidentiary hearing on voluntariness, where defendant was hospitalized but the cause was unknown).⁵

The key word is “voluntarily.” Appellant argued below, and argues here, that his absence was not voluntary because his ingestion of a large quantity of alcohol and methamphetamine does not establish his intent to be absent from trial. He argues that he was only trying to calm his nerves, not trying to miss his trial. He asks us to focus on the end result—hospitalization—rather than the cause. That is, Appellant argues for an analytical break between action and consequence—under which the choice to drink and use drugs does not mean the outcome of hospitalization was intentional or voluntary. He reasons that his scenario is no different from driving, which could result in an accident and hospitalization; or climbing a mountain, which could end the same way. Further, after inviting us to look only at the result—hospitalization—he argues from a policy perspective that if we hold that hospitalization constitutes a voluntary absence, we would incentivize defendants to put their health in danger to attend court.

I strongly reject Appellant's arguments, and instead would follow precedent finding alcohol or drug intoxication to be voluntary acts supporting a waiver of the right to be present at trial. First, as to how to analyze the facts, a defendant's actions certainly matter. It merits emphasis that Appellant did not merely have a beer with dinner and then have a car accident that landed him in the emergency room. Rather, he drank heavily and took a potentially fatal dose of an illegal drug, just hours before he knew his felony trial was about to begin. The chances of that scenario's ending well were nearly zero from the outset. This was not an everyday risk of normal life, as his driving and climbing scenarios would suggest. The present facts are not good for advocating Appellant's (or the majority's) preferred rule of law. Nor would it be good policy to accept Appellant's argument that finding this absence to be voluntary would force defendants to put their health at risk to attend court when they should be hospitalized. The Florida Supreme Court has embraced the opposite approach, reasoning that rule 3.180 should be interpreted to prevent defendants from “thwart[ing] or imped[ing] the judicial process through their own misconduct.” Capuzzo, 596 So. 2d at 440. On these facts, the more likely and more troubling result of Appellant's proposed policy and the majority's approval of it would be to encourage defendants to get drunk and/or high before trial to secure postponements. I would not incentivize that behavior.

Turning from facts to precedent: again, the key is voluntariness. Ordinary accidents and illnesses, and hospitalization for them, are considered involuntary events. See, e.g., Reynolds v. State, 313 So. 3d 129 (Fla. 4th DCA 2021) (finding absence involuntary where defendant had a history of high blood pressure and heart issues and a nurse confirmed he was at the emergency room for related issues); Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003) (finding absence involuntary where defendant was bedridden in the hospital awaiting surgery); Godwin, 501 So. 2d at 155 (considering dangerously high blood pressure, as confirmed by a doctor, an involuntarily caused absence); c.f. Hilliard v. State, 169 So. 3d 264, 265 (Fla. 2d DCA 2015) (indicating that mental illness in recently Baker-acted defendant could establish involuntariness).

At the other end of the spectrum, fleeing or absconding is universally considered a voluntary absence and thus a waiver of the right to be present. See, e.g., Capuzzo, 596 So. 2d at 440 (fleeing); Daniels v. State, 587 So. 2d 460, 461 (Fla. 1991) (finding absence voluntary where defendant absconded and was not found for ten months); Wallen v. State, 932 So. 2d 493, 493 (Fla. 4th DCA 2006) (finding voluntary absence where defendant was arrested in another state).

This scenario falls under the voluntary-act end of the spectrum. Appellant was in the hospital instead of in trial because of his choice to drink and take drugs—heavily. His voluntary choice was the but-for cause of his absence. These facts are closely analogous to those in Dufour v. State, 495 So. 2d 154 (Fla. 1986), cert. denied, 479 U.S. 1101 (1987). There, the Florida Supreme Court found the defendant's hospitalization caused by his hunger strike was a voluntary absence. Id. at 161.

Although no Florida case is on-point as to the voluntariness of court absence caused by voluntary ingestion of alcohol and/or drugs, leading to alcohol intoxication or drug overdose, several other jurisdictions have found such acts to establish voluntariness. I agree with their reasoning and results. See State v. Mullins, 1999 WL 228819 at *14 (Tenn. Crim. App. Apr. 21, 1999) (finding absence voluntary where defendant took an overdose of a drug during the lunch hour and became unresponsive, requiring emergency hospitalization); Bundy v. State, 622 A.2d 175, 187 (Md. Ct. Sp. App. 1993) (finding absence voluntary where defendant admitted he had passed out from a drug overdose), rev'd on other grounds, 638 A.2d 84 (1994); Bottom v. State, 860 S.W.2d 266, 267 (Tex. App. 1993) (finding defendant's absence from trial voluntary because “he chose to ingest large quantities of aspirin and arthritis medication,” and “he cannot avoid trial by intentionally disabling himself”) (emphasis original); Finnegan v. State, 764 N.W.2d 856, 862 (Minn. Ct. App. 2009) (finding absence voluntary where “appellant's acts were deliberate; he purposefully ingested methamphetamines that caused him to become unresponsive”), aff'd, 784 N.W.2d 243 (Minn. 2010); State v. Glenny, 656 P.2d 990, 992 (Utah 1992) (affirming trial court's decision to proceed with jury selection without defendant's presence where he was “so intoxicated just before the selection of the jury that it would have been detrimental to his own interests to be present”).

I also find analogous support for my conclusion of voluntariness in Florida law eliminating voluntary intoxication as a defense to any crime. The Florida Legislature enacted section 775.051 of the Florida Statutes in 1999, and it is very clear on this issue:

Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance ․ is not a defense to any offense proscribed by law. Evidence of a defendant's voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense.

§ 775.051, Fla. Stat. (2020). See Daniels v. State, 313 So. 3d 247, 253 (Fla. 1st DCA 2021) (“The Legislature abolished the defense of voluntary intoxication when it enacted section 775.051, Florida Statutes.”). The statute allows only one exception, for drug use “pursuant to a lawful prescription issued to the defendant by a practitioner.” § 775.051, Fla. Stat. See also Fla. Std. Jury Instr. (Crim.) 3.6(d) (reflecting that voluntary intoxication from alcohol or a controlled substance is not a defense; “A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.”). We recognized that limited exception in Cobb v. State, 884 So. 2d 437, 438 (Fla. 1st DCA 2004) (“The Legislature expressly limited the use of an intoxication defense to those circumstances where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine ‘pursuant to a lawful prescription.’ ”).

The facts presented clearly establish Appellant's choice to take illegal methamphetamine, and drink alcohol to excess, neither with a lawful prescription. Appellant's acts would not constitute a defense to any general-intent crime under Florida law. See Daniels v. State, 313 So. 3d 247, 253 (Fla. 1st DCA 2021) (requiring defendant to show unexpected intoxication after taking prescribed medicine in a lawful manner, as prerequisite to voluntary intoxication defense); Montero v. State, 996 So. 2d 888, 891 (Fla. 4th DCA 2008) (finding taking even prescribed drugs can eliminate an involuntary intoxication defense absent proof of taking only prescribed dose or that intoxication was unexpected); Stimus v. State, 995 So. 2d 1149, 1151–52 (Fla. 5th DCA 2008) (rejecting involuntary intoxication defense despite existence of legal prescription, where defendant knowingly took at least eight times the prescribed dose in addition to drinking six to twelve cans of beer on day of crime); Cobb v. State, 884 So. 2d 437, 438–39 (Fla. 1st DCA 2004) (rejecting involuntary intoxication defense where defendant took several times the prescribed doses of Paxil and Xanax). Given the law and policy of Florida against allowing criminal defendants to take advantage of unlawful drug or alcohol abuse even on the merits of criminal cases, I am hard pressed to find any reason why Appellant's acts would constitute involuntary intoxication for purposes of his absence from trial. The trial court did not abuse its discretion.

Because I reject Appellant's voluntary-intoxication argument, I would proceed to—and likewise reject—his second and third arguments. The second is that the trial court erred in refusing to give a curative instruction on two of the prosecutor's rebuttal arguments. The third is that the trial court abused its discretion in refusing to give the jury a special instruction that the “entry” element of burglary must be proven to be intentional and willful. Neither argument has merit.

2. Closing Argument.

First, Appellant asserts the prosecutor improperly argued that “[Appellant's] tormenting and the picking at and the bullying and the threats and all of that's done. That ends today.” Second, Appellant asserts the prosecutor improperly argued that the defense was treating the incident as a joke, but that the crime was no joke. Defense counsel objected to both of these comments, addressed them in his closing, and later moved for a mistrial, which the court denied. Appellant argues the prosecutor's comments could have influenced the jury improperly. I disagree.

Counsel is allowed to argue that the jury should question a defendant's theory of the case, in light of the evidence presented at trial. Johnson v. State, 293 So. 3d 46, 56 (Fla. 1st DCA 2020). Viewed in the context of Appellant's counsel's argument, neither of the prosecutor's challenged comments crossed the line. She was simply responding to argument that Appellant's counsel introduced, which is not improper.

As to the prosecutor's “ends today” comments, the court at sidebar cautioned the prosecutor to focus on the elements of the crime. The court declined to give a curative instruction, so as to avoid bringing additional attention to the issue. See Salazar v. State, 991 So. 2d 364, 372–73 (Fla. 2008) (noting courts have discretion to decline to give curative instruction to avoid risk of highlighting allegedly erroneous arguments). Defense counsel asked the jury to focus on the elements of the crimes and the facts, and not on counsel's arguments, and specifically not on any comments about bullying. Defense counsel then argued about the relationship between Appellant and the victim, specifically highlighting and rebutting the prosecutor's argument to which he had objected. He argued as an alternative scenario that although admittedly Appellant “drank, did drugs, and [was] a bit dense,” “didn't get it,” and was just a “drunk idiot,” a “drunk fool,” that only made Appellant a “fun, jolly, happy guy, who's annoying,” but never intended to commit a crime. If anything, defense counsel made it worse by pursuing those arguments after first objecting to the prosecutor's arguments.

In the same vein, the record is clear that defense counsel invited the prosecutor's “no joke” comments in rebuttal. Defense counsel argued that Appellant was just a dense, drunk idiot and fool who at the end of the day was a “fun, jolly, happy guy, who's annoying.” Such a strategy of deflection and trivialization might work sometimes, but is a calculated risk, and one that allows for rebuttal. The prosecutor was entitled to respond to defense counsel's arguments by redirecting the jury's attention to the seriousness of the offenses and the victim's injuries. State v. Ling, 212 So. 3d 530, 533 (Fla. 1st DCA 2017) (noting a” prosecutor's comments are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same subject.” (quoting Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006)); see also Bell v. State, 108 So. 3d 639, 649 (Fla. 2013) (explaining even comments suggestive of defendant's failure to produce evidence at trial were permissible as invited response, because they were in direct response to defense counsel's closing). No reversible error occurred.

3. Special Instruction on Burglary.

Finally, Appellant's counsel requested the court to instruct the jury that the entry to a dwelling must be willful or knowing to support a burglary verdict (consistent with Appellant's argument that he accidentally fell into the house and onto the victim). That language is not in the standard instruction. See Fla. Std. Jury Instr. 13.1 (instructing on two elements: entry and intent to commit a crime therein). The court declined to do so, noting that the second element of burglary is entering with intent to commit a crime (in this case, assault or battery), which covered the question of intent. The court agreed to instruct the jury on trespass as a lesser-included offense. The court also instructed the jury on defenses of license or invitation to enter and unlawful entry without intent to commit assault or battery.

These instructions as given were proper and adequately covered the defense theory. See Alvarez v. State, 890 So. 2d 389, 397 (Fla. 1st DCA 2004). The evidence fully supported the conclusion that Appellant committed a trespass, and defense counsel properly conceded that point. Defense counsel remained able to argue, and did argue, that the post-trespass battery was an accident and thus Appellant could not be found guilty of burglary. The trial court did not abuse its discretion in denying the special instruction, and the instructions as given properly preserved the valid arguments available to the defense.

FOOTNOTES

1.   Dorland’s defines “agonal” as “pertaining to or occurring at the time just before death.” W.A. Newman Dorland, Dorland’s Illustrated Medical Dictionary 40 (29th ed. 2000).

2.   See also England v. State, 940 So. 2d 389, 404 (Fla. 2006) (approving gagging of criminal defendant, which “reflected the particular and appropriate concerns of this trial judge who was, at the end of the trial, confronted with an obstreperous defendant intent on manufacturing a mistrial”).

3.   The dissent asserts that the circumstances here are analogous to those addressed by the supreme court in Dufour v. State, 495 So. 2d 154 (Fla. 1986). All we know of those facts, however, comes from the following sentence in that capital appeal: “[W]e agree with the state that appellant voluntarily absented himself from the proceeding within the terms of Florida Rule of Criminal Procedure 3.180(b) by embarking on a ‘hunger strike’ culminating in his hospitalization during the [pretrial] hearing.” Dufour, 495 So. 2d at 161 (Fla. 1986). We fairly can infer from there that the hunger strike was directed at disrupting the proceeding. There was nothing before the trial court in this case demonstrating that Nipper's conduct similarly was directed at disrupting his trial.

4.   Federal Rule of Criminal Procedure 43 parallels Florida's rule 3.180, and the Supreme Court has found the federal rule constitutional. Taylor v. United States, 414 U.S. 17, 19 (1973).

5.   In this case, the information the trial court obtained on the fly when Appellant failed to appear the first morning of trial was not sworn or formally entered into evidence. Nevertheless, I would find that the trial court was within its discretion to accept it as presented, under the circumstances and to avoid further delaying the trial. The court spoke by phone with witnesses including healthcare personnel, and defense counsel presented hospital documentation, all without objection.

Tanenbaum, J.

Rowe, J., concurs with an opinion, which Tanenbaum, J., joins; Kelsey, J., dissents with an opinion.