DEMETRY E. FAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation because trial court erred in denying defendant's counsel the right to present closing argument at the probation violation hearing.
A defendant is entitled to closing argument at a probation revocation hearing, and denial of this right is reversible error.
[1] A defendant has a constitutional right to closing argument at a probation revocation hearing, and denial of this right is reversible error that cannot be deemed harmless.
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Join FLexlaw to unlock all legal intelligence“Appellant was entitled to an opportunity to be heard on the issue of whether he violated his probation.”
Court establishing the foundational right to be heard at probation revocation proceedings.
Demetry Fain was subject to probation and faced a hearing on whether he violated its terms. At the conclusion of the evidentiary portion, the trial co…
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Demetry E. Fain appeals an order revoking probation and sentencing him to fifteen years’ imprisonment. He argues that the trial court reversibly erred in denying his counsel’s request for a closing argument at the end of the evidentiary portion of the hearing. We agree.
Appellant was entitled to an opportunity to be heard on the issue of whether he violated his probation. See Pearson v. State, 51 So.3d 1286, 1286 (Fla. 4th DCA 2011); Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (citing Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)). This opportunity includes the right to a closing argument. Pearson, 51 So.3d at 1286; Estevez, 705 So.2d at 973. Because we do not know how a closing argument might have affected the judge’s perception of the evidence, we decline the State’s invitation to deem the denial of closing argument harmless. Cf. Herring v. New York, 422 U.S. 853, 862-64, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (noting that a closing argument may correct misperceptions in what would otherwise appear to be an “open and shut” bench trial and that there is no way for a judge to know if a closing argument will have such an effect without allowing the argument to proceed). Accordingly, we reverse and remand for a new hearing.
BENTON, C.J., ROBERTS and RAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Selman v. State, 160 So. 3d 102 (Fla. 4th DCA 2015)…ent may correct misperceptions in what would otherwise appear to be an “open and shut” bench trial and that there is no way for a judge to know if a closing argument will have such an effect without allowing the argument to proceed). Fain v. State, 134 So. 3d 1039, 1040 (Fla. 1st DCA 2013). Here, the defense attorney clearly was seeking the opportunity to offer a closing argument on behalf of her client. Counsel’s lack of specific words such as, “May I present closing argument?” was not necessary under the fa…
Authorities Cited
- Herring v. New York, 422 U.S. 853 (U.S. 1975)
- Black v. Romano, 471 U.S. 606 (U.S. 1985)
- Manrique Estevez v. State, 705 So. 2d 972 (Fla. 3d DCA 1998)
- Eliot Lewis Pearson v. State, 51 So. 3d 1286 (Fla. 4th DCA 2011)
- Becerra v. State, 51 So. 3d 1286 (Fla. 4th DCA 2011)