Third District Court of Appeal

State of Florida 

Opinion filed January 18, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1012

Lower Tribunal No. F15-25089

________________

Peter Arnold,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de 

la O, Judge.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant 

Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant 

Attorney General, for appellee.

Before SCALES, GORDO and BOKOR, JJ. 

SCALES, J.
2

Peter Arnold appeals from a final order revoking his probation, claiming 

that the trial court erred in denying Arnold’s motion to suppress his 

videotaped, sworn statement to the police. Finding no reversible error, we 

affirm the denial of Arnold’s motion to suppress and the final order of 

probation revocation. Arnold also appeals the final order imposing sentence, 

claiming that the trial court, by conducting the March 26, 2021 sentencing 

hearing via the Zoom videoconferencing platform,

1 violated his procedural 

due process right2 to be physically present at the hearing. Because the 

record does not show that the trial court conducted the requisite balancing 

test, weighing Arnold’s due process right to be physically present at 

sentencing against the State’s competing interests in holding the proceeding 

remotely, we reverse and remand for a new sentencing hearing.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

1 As discussed in more detail, infra, the remote sentencing hearing 

conducted below occurred while the Florida Supreme Court’s administrative 

order temporarily suspending court rules that “limit or prohibit the use of 

communication equipment for the remote conduct of proceedings” was still 

in effect. See In re Comprehensive COVID-19 Emergency Measures for the 

Florida State Courts, Fla. Admin. Order No. AOSC20-23, Amend. 9 (Feb. 17, 

2021).

2 See Amend. XIV, U.S. Const.; Art. 1, § 9, Fla. Const.
3

In May 2016, Arnold pled guilty to two counts of battery (counts I and 

II), two counts of aggravated battery with a deadly weapon (counts III and 

IV), and third-degree grand theft of a vehicle (count V). The trial court 

sentenced Arnold to time served on counts I and II, and to three years of 

probation on counts III, IV, and V.

In August 2018, Arnold’s probation officer filed an affidavit of violation 

of probation alleging that Arnold had violated numerous conditions of his 

probation that are not relevant here. The relevant Third Amended Affidavit 

of Violation of Probation alleged further that Arnold had violated the 

conditions of his probation by committing second-degree murder with a 

weapon and by possessing a firearm as a convicted felon.

Prior to the probation revocation hearing, Arnold moved to suppress 

his videotaped, sworn statement to the police, claiming that his Miranda3

waiver was not knowingly and voluntarily given. After holding an evidentiary 

hearing on Arnold’s motion to suppress, the trial court entered a detailed 

order denying the motion. Following a probation revocation hearing4 the trial 

3 Miranda v. Arizona, 384 U.S. 436 (1966).

4 Both the hearing on Arnold’s motion to suppress and the probation 

revocation hearing were held via the Zoom videoconferencing platform. In 

this appeal, as below, Arnold presents no constitutional challenges with 

respect to those hearings being conducted remotely.
4

court determined, by a preponderance of the evidence, that Arnold had 

committed two willful and substantial violations of the terms of his probation 

by committing second-degree murder and possessing a firearm as a 

convicted felon.

Arnold thereafter moved to continue the sentencing date for his 

probation revocation violations until the conclusion of his jury trial on the 

second-degree murder and gun possession charges. Arnold also filed an 

“Objection to Remote Sentencing,” arguing that conducting his sentencing 

hearing via the Zoom videoconferencing platform violated Arnold’s 

procedural due process right to be physically present in the courtroom for 

sentencing. On March 24, 2021, the trial court entered separate orders 

denying Arnold’s motion to continue the sentencing and overruling Arnold’s 

objection to the remote sentencing proceeding.

On March 26, 2021, the trial court conducted Arnold’s remote 

sentencing hearing via the Zoom videoconferencing platform. Other than the 

trial judge, all participants at the hearing appeared remotely, with defense 

counsel and Arnold appearing from different locations. The sentencing 

hearing transcript confirms that the only constitutional objection raised at 

sentencing was Arnold’s procedural due process right to be present in the 

courtroom. 
5

The trial court sentenced Arnold to fifteen years in prison for counts III 

and IV, and to five years in prison for count V, the sentences to run 

consecutively, and with credit for time served. Arnold timely filed this appeal.

II. ANALYSIS

A. The Motion to Suppress5

 

We need not decide whether the trial court erred in denying Arnold’s 

motion to suppress because, even if the court erroneously admitted Arnold’s 

videotaped, sworn statement into evidence at the probation revocation 

hearing, any error was harmless beyond a reasonable doubt. See Williams 

v. State, 976 So. 2d 1197, 1199 (Fla. 2d DCA 2008) (“To establish harmless 

error, the State must prove beyond a reasonable doubt that the error did not 

contribute to the conviction. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 

1986). ‘Application of the test requires an examination of the entire record by 

the appellate court including a close examination of the permissible evidence 

on which the jury could have legitimately relied, and in addition an even 

5 “In reviewing a trial court’s ruling on a motion to suppress, appellate courts 

must accord a presumption of correctness to the trial court’s determination 

of the historical facts, but must independently review mixed questions of law 

and fact that ultimately determine the constitutional issues arising in the 

context of the Fourth Amendment.” Moody v. State, 842 So. 2d 754, 758 

(Fla. 2003). Such rulings are also subject to harmless error analysis. See

Connor v. State, 803 So. 2d 598, 609 (Fla. 2001).
6

closer examination of the impermissible evidence which might have possibly 

influenced the jury verdict.’ Id.”).

The State presented substantial evidence at the probation revocation 

hearing conducted below, including: (i) the testimony of the victim’s girlfriend, 

who testified that Arnold had a gun in the victim’s home and that she 

overheard a loud argument between Arnold and the victim; (ii) the testimony 

of the victim’s brother, who also testified that Arnold had a gun in the victim’s 

home and that he heard an altercation between Arnold and the victim, 

followed shortly by a gunshot and Arnold saying “that’s what you get”; (iii) 

Arnold fled the scene immediately after the shooting; and (iv) the individual 

who Arnold claimed was the actual shooter, and who was apprehended by 

the police two minutes after the shooting, did not test positive for gunshot 

residue. The State’s considerable testimonial and forensic evidence, along 

with the multitude of exhibits introduced below, was competent, substantial 

evidence for the trial court to determine, by a preponderance of the evidence, 

that Arnold had possessed a gun and committed second-degree murder, and 

to revoke Arnold’s probation. See Robinson v. State, 907 So. 2d 1284, 1287 

(Fla. 2d DCA 2005) (“The proper standard for finding a new law violation is 

whether a preponderance of the evidence establishes that the probationer 

committed the charged offense or offenses. ‘Proof sufficient to support a 
7

criminal conviction is not required to support a judge’s discretionary order 

revoking’ probation.” (quoting Robinson v. State, 609 So. 2d 89, 90 (Fla. 1st 

DCA 1992) (citations omitted))).

Arnold’s defense theory was that he was present at the scene but that 

he was not the shooter. Importantly, his sworn statement to the police 

detective was not a confession. Rather, Arnold steadfastly maintained his 

innocence for the shooting death of the victim, naming another individual 

who lived at the victim’s residence as the perpetrator of the crime, giving the 

detective a detailed account of what Arnold claimed to have occurred before, 

during and after the shooting. But for the introduction of his sworn statement

into evidence at the probation revocation hearing – Arnold did not testify 

therein – the fact finder would have had very little probative evidence before 

it to support Arnold’s theory of events.6

Thus, without reaching the issue of whether the trial court erred by 

denying Arnold’s suppression motion, given the significant incriminating 

evidence against Arnold, we conclude that any error in the introduction of 

Arnold’s sworn statement at the probation revocation hearing was harmless 

beyond a reasonable doubt. See Stein v. State, 632 So. 2d 1361, 1365 (Fla. 

6 We note that the prosecutor did not rely on Arnold’s sworn statement during 

closing argument. 
8

1994) (“[G]iven the significant amount of other incriminating evidence in this 

case, we would find that the admission of Stein’s statements constituted 

harmless error.”).

B. The Remote Sentencing Hearing7

Arnold next argues that the trial court’s conducting Arnold’s probation 

violation sentencing hearing via the Zoom videoconferencing platform, over 

Arnold’s objection, constituted a due process violation. When the trial court 

enters an order revoking a criminal defendant’s probation, the defendant 

generally has a due process right to be physically present in the courtroom 

at the ensuing sentencing hearing. See Thompson v. State, 208 So. 3d 1183, 

1187-88 (Fla. 3d DCA 2017); Fla. R. Crim. P. 3.180(a)(9) (“In all prosecutions 

for crime the defendant must be present[8]

. . . at the imposition of sentence.”).

Nonetheless, “[t]he concept of due process is not rigid or static, but flexible 

and dynamic.” Clarington v. State, 314 So. 3d 495, 501 (Fla. 3d DCA 2020). 

“Whether a proceeding comports with fundamental principles of due process 

7 “We review a claim of deprivation of procedural due process de novo.” I.T. 

v. Dep’t of Children & Families, 338 So. 3d 6, 9 (Fla. 3d DCA 2022).

8 A defendant “is present” for the imposition of sentencing “if the defendant 

has a meaningful opportunity to be heard through counsel on the issues 

being discussed” and the defendant either “(1) is physically in attendance for 

the courtroom proceeding;” or “(2) waives physical attendance in writing or 

on the record . . . , the court accepts the waiver, and the defendant appears 

by audio-video communication technology.” Fla. R. Crim. P. 3.180(b)(1)-(2).
9

depends on, and is informed by, the attendant circumstances and a 

balancing of the competing interests at stake.” Id.; Tuttle’s Design-Build, Inc., 

753 So. 2d 49, 51 (2000) (“[R]ather than articulating a laundry list of specific 

procedures required to protect due process, the United States Supreme 

Court has emphasized that the protection of due process rights requires 

balancing the interests of the parties involved.”).

The instant remote sentencing hearing occurred while the Florida 

Supreme Court’s Administrative Order AOSC20-23 suspending rule 3.180’s 

physical presence requirement was still in effect. Importantly, though, the 

Order stated in its Guiding Principles that “[t]he presiding judge in all cases 

must consider the constitutional rights of crime victims and criminal 

defendants and the public’s constitutional right of access to the courts.” 

Further, the Order clearly required the trial court, when faced with a

constitutional challenge to a remote sentencing proceeding, to ensure that 

the remote proceeding would not infringe upon the defendant’s constitutional 

rights:

E. Other Trial Court Proceedings. Trial court proceedings 

that are not addressed under Section III.A.(1) or III.D. shall be 

conducted as follows during Phase 1 and Phase 2. If in-person 

conduct of the proceeding is required below, the proceeding may 

be conducted in person only if the circuit or a county within the 

circuit is operating in Phase 2 pursuant to Fla. Admin. Order No. 

AOSC20-32, as amended, in a manner that is consistent with the 
10

circuit’s operational plan, or as otherwise authorized under 

Section III.B(5)(a). or IXA.(2).

. . . .

(3) All other trial court proceedings shall be conducted 

remotely, except that a proceeding shall be conducted in person 

if the chief judge or presiding judge, in consultation with the chief 

judge, determines that remote conduct of the proceeding:

a. Is inconsistent with the United States or Florida 

Constitution, a statute, or a rule of court that has not been 

suspended by administrative order; or 

b. Would be infeasible because the court, the clerk, or other 

participant in a proceeding lacks the technological 

resources necessary to conduct the proceeding or, for 

reasons directly related to the state of emergency or the 

public health emergency, lacks the staff resources 

necessary to conduct the proceeding.

Chief judges shall take all necessary steps to ensure that 

the above-listed proceedings are conducted to the fullest extent 

feasible, consistent with the guidance established in this section.

(Emphasis added). Faced with Arnold’s contemporaneous procedural due 

process challenge to the trial court remotely conducting Arnold’s sentencing 

proceeding, the trial court, under the attendant circumstances then 

presented, was required to balance Arnold’s due process right to be 

physically present in the courtroom for sentencing against the State’s 

“significant interest in ensuring the effective and expeditious administration 
11

of justice” and “the necessities created by the threat to public health and 

safety posed by the novel Coronavirus.” Clarington, 314 So. 3d at 507.9

Rather than balancing the parties’ competing interests under the 

circumstances presented to ensure that the instant remote proceeding would 

comport with due process, the trial court overruled Arnold’s objection to the 

remote sentencing proceeding primarily because the court did not see 

anything “unique about this case that requires an in person sentencing” and

Arnold “[was] in the same position as anyone else who [was] accused of 

violating their probation and the hearing occurs remotely.” Our record does 

9 In Clarington, this Court denied a defendant’s petition seeking to prohibit 

the trial court from remotely conducting an October 16, 2020 probation 

violation hearing. Florida was then in the throes of a public health emergency 

caused by the Covid-19 pandemic. This Court determined that the trial 

court’s conducting the proceeding remotely – in which the defendant would

not be physically present in the courtroom and each participant would be at 

separate locations – would not violate the defendant’s constitutional due 

process rights. 314 So. 3d at 507. Because of its procedural posture, though, 

Clarington expressly declined to address whether the defendant would have

the constitutional right to be physically present in the courtroom at 

sentencing. Id. at 509, n.16. 

In Gonzalez v. State, 343 So. 3d 166, 170 (Fla. 3d DCA 2022), this 

Court concluded that the trial court’s conducting an un-objected to 

sentencing hearing on September 21, 2020, immediately following 

revocation of the defendant’s probation, did not constitute fundamental error.

Here, Arnold preserved his due process challenge to the remote sentencing 

hearing by filing an objection thereto in the lower court.
12

not reflect that the trial court engaged in the analysis, or made the express 

findings, contemplated by the Order before proceeding with Arnold’s remote 

sentencing hearing. We, therefore, are compelled to reverse the sentencing 

order and remand for further proceedings. 

Affirmed in part; reversed in part and remanded.
13

Peter Arnold v. The State of Florida

Case No. 3D21-1012

GORDO, J., specially concurring.

I concur in the majority opinion and fully agree with my colleagues that 

reversal is required. At the outset, it is important to note that while courts at 

large were faced with incredible challenges during the pandemic, under the 

guidance of our Chief Justice and Chief Administrative Judges throughout 

the state, as well as conscientious trial judges, cases were often handled 

extremely effectively while ensuring rights were properly afforded, despite 

the difficulties presented. 

I write separately to highlight my concern regarding a common 

occurrence during the pandemic that ought to send chills through those 

properly vested with ensuring that constitutional and due process rights be 

afforded, even in difficult times. 

During the proceedings in this case, which occurred in March of 

202110, the defendant—who was facing up to thirty years in state prison—

asked to be physically present in the courtroom and objected to appearing 

by Zoom at the sentencing hearing. In response, the trial court articulated 

10 At that time, schools in Miami-Dade were fully open, international airline 

travel was common and everyday retail businesses such as barber shops 

and salons were operating. In fact, the Miami-Dade County Courthouse 

resumed holding in-person jury trials the following Monday. 
14

that he had spoken to the administrative judge regarding the case and 

advised the parties of the following: 

I did go up the chain of command here. I didn’t make 

it past [the administrative judge], who asked me one 

simple question. She said, what is unique about this 

case that requires an in person sentencing, as 

opposed to just a general objection to remote 

sentencings. I said, I didn’t see anything in the order 

that was unique to Mr. Arnold. He’s in the same 

position as anyone else who is accused of violating 

their probation and the hearing occurs remotely. 

In my view, this analysis is completely inverted and contravenes the 

approach trial judges ought to take when faced with whether a specific 

emergency should continue to infringe on a defendant’s constitutional rights. 

While the Florida Supreme Court’s Administrative Order AOSC20-23 

suspended Florida Rule of Criminal Procedure 3.180’s physical presence 

requirement during the pandemic, that Order specifically proscribed that 

“[t]he presiding judge in all cases must consider the constitutional 

rights of crime victims and criminal defendants and the public’s 

constitutional right of access to the courts.” In re Comprehensive COVID-19 

Emergency Measures for the Florida State Courts, Fla. Admin. Order No. 

AOSC20-23, Amend. 9 (Feb. 17, 2021) (emphasis added).

Under the United States and Florida Constitutions, a defendant has the 

constitutional due process right to be physically present at a sentencing 
15

hearing. See U.S. Const. amend. XIV, § 1 (“No State shall make or enforce 

any law which shall abridge the privileges or immunities of citizens of the 

United States; nor shall any State deprive any person of life, liberty, or 

property, without due process of law; nor deny to any person within its 

jurisdiction the equal protection of the laws.”); Art. I, § 9, Fla. Const. (“No 

person shall be deprived of life, liberty or property without due process of 

law, or be twice put in jeopardy for the same offense, or be compelled in any 

criminal matter to be a witness against oneself.”); Dunbar v. State, 89 So. 3d 

901, 907 (Fla. 2012) (“One of the most basic tenets of Florida law is the 

requirement that all proceedings affecting life, liberty, or property must be 

conducted according to due process, which includes a reasonable 

opportunity to be heard.”); Jackson v. State, 767 So. 2d 1156, 1160 (Fla. 

2000) (“[A defendant’s] right to be present is based upon the long-standing 

principle that a defendant in a criminal case has a fundamental right, 

guaranteed by the Constitutions of the United States and of Florida, and 

explicitly provided in the Florida Rules of Criminal Procedure, to be present 

at sentencing, a critical stage of every criminal proceeding.”); Kentucky v. 

Stincer, 482 U.S. 730, 745 (1987) (finding “a defendant is guaranteed the 

right to be present at any stage of the criminal proceeding that is critical to 
16

its outcome if his presence would contribute to the fairness of the 

procedure”).

Further, the right to be physically present encompasses the 

fundamental premise that the jurist who is passing sentence upon a person 

ought to be in the physical presence of the corpus itself. See Doe v. State, 

217 So. 3d 1020, 1026 (Fla. 2017) (“The requirement of physical presence, 

. . . would be meaningless if the judicial officer, or the finder of fact and 

ultimate decision-maker, is not also present in the hearing room.”); Brown v. 

State, 538 So. 2d 833, 835 (Fla. 1989) (“[T]he presence of a judge during 

trial is a fundamental right.”); Coy v. Iowa, 487 U.S. 1012, 1017 (1988) 

(“[T]here is something deep in human nature that regards face-to-face 

confrontation between accused and accuser as ‘essential to a fair trial in a 

criminal prosecution.’” (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965))). 

As provided by the Florida Supreme Court “[a] judicial officer should be 

physically present to preside over any matter that could lead to the ‘massive 

curtailment of [an individual’s] liberty.’” Doe, 217 So. 3d at 1027 (quoting 

Humphrey v. Cady, 405 U.S. 504, 509 (1972)). Further, Florida Rule of 

Criminal Procedure 3.180 defines presence as the defendant being 

“physically in attendance for the courtroom proceeding,” which necessarily 

includes the right to be physically present at sentencing. 
17

It is therefore clear that under the United States and Florida 

Constitutions the defendant has the right to be physically present. That right 

of course may be abridged based on something unique that is occurring, 

even perhaps a pandemic.11 But the ability to infringe upon a defendant’s 

constitutional right hinges on some showing by the government that 

abrogation of the preference for physical presence is necessary under the 

circumstances. See T.H. v. State, 2022 WL 16703183, at *5 (Fla. 2d DCA 

Nov. 4, 2022) (“The burden of persuasion is upon the party seeking to 

abrogate the preference for physical face-to-face confrontation.”); cf. Roman 

Catholic Diocese of Brooklyn v. Cuomo, 208 L. Ed. 2d 206 (2020) (Gorsuch, 

J., concurring) (“Even if the Constitution has taken a holiday during this 

pandemic, it cannot become a sabbatical.”). 

The crux of the recurring ill in my view is that courts throughout the 

pandemic have equated virtual presence with that of physical presence. 

There is no doubt that Zoom hearings have proven to be an asset to the 

courts, particularly during the COVID-19 pandemic. But “technological 

changes in the courtroom cannot come at the expense of the basic individual 

11 See Crawford v. Washington, 541 U.S. 36, 67–68 (2004) (Scalia, J.) (“[The 

Framers] were loath to leave too much discretion in judicial hands. By 

replacing categorical constitutional guarantees with open-ended balancing 

tests, we do violence to their design.”). 
18

rights and freedoms secured by our constitutions.” Harrell v. State, 709 So. 

2d 1364, 1372 (Fla. 1998). Courts have recognized that virtual presence is 

not equal to physical presence for substantive matters. See Maryland v. 

Craig, 497 U.S. 836, 865 (1990) (Scalia, J. dissenting) (“‘Live’ closed-circuit 

television testimony, however—if it can be called hearsay at all—is surely an 

example of hearsay as ‘a weaker substitute for live testimony,’ which can be 

employed only when the genuine article is unavailable.”); Harrell, 709 So. 2d 

at 1368 (“We are unwilling to develop a per se rule that would allow the vital 

fabric of physical presence in the trial process to be replaced at any time by 

an image on a screen. Perhaps the ‘virtual courtroom’ will someday be the 

norm in the coming millennium; for now, we do not conclude that virtual 

presence is the equivalent of physical presence for the purposes of the 

Confrontation Clause.”); Amendment to Florida Rule of Juvenile Procedure 

8.100(A), 796 So. 2d 470, 475 (Fla. 2001) (“Not simply allowing, but 

mandating that children attend detention hearings conducted through an 

audio-visual device steers us towards a sterile environment of T.V. chamber 

justice, and away from a system where children are aptly treated as society’s 

most precious resource.”). 

As Justice Scalia emphatically wrote “a purpose of the Confrontation 

Clause is ordinarily to compel accusers to make their accusations in the 
19

defendant’s presence—which is not equivalent to making them in a room 

that contains a television set beaming electrons that portray the defendant’s 

image. Virtual confrontation might be sufficient to protect virtual 

constitutional rights; I doubt whether it is sufficient to protect real ones.” 

Order of the Supreme Court, 207 F.R.D. 89, 94 (2002) (statement of Scalia, 

J.). While this discussion addresses Confrontation Clause issues focused 

on adversarial examination during testimony, much of its concerns transfer 

for purposes of sentencing proceedings and physical presence at critical 

stages of the proceedings.

Today, common sense understanding of remote technology and social 

media interactions demonstrates the depersonalizing aspects of acting or 

speaking via a remote box at a significant distance from the individual being 

affected. It is far more impactful to be in the physical presence of an 

individual and pronounce a curtailment of their rights as opposed to doing so 

in their virtual presence—which is often merely an image of their face 

appearing in some box on a screen. During sentencing, it is not only the 

defendant who is afforded the opportunity to speak, but victims, next of kin 

and the court. These are not small matters. The drafters of our founding 

documents fundamentally recognized that what stood between a citizen and 

his government or its overreach were the rights afforded to every citizen 
20

under our Constitution. I cannot think of a more serious matter in which those 

rights must be afforded than in a situation where a man will be deprived of 

his liberty for the next thirty years. 

In sum, I view the trial court’s inquiry as misplaced. The question is 

NOT—what is special or important about this defendant or his case 

warranting his entitlement to be physically present? Rather, the question 

IS—what necessity exists at this time to deprive this defendant of his 

fundamental right to be physically present at a proceeding effecting his 

liberty?