NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

AARON RAMON SHAW, )

)

Appellant, )

)

v. ) Case No. 2D17-4664

)

STATE OF FLORIDA, )

)

Appellee. )

________________________________ )

Opinion filed September 11, 2020.

Appeal from the Circuit Court for DeSoto

County; Don T. Hall, Judge.

Howard L. Dimmig, II, Public Defender,

and Matthew D. Bernstein, Assistant

Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,

Tallahassee, and Kiersten E. Jensen, 

Assistant Attorney General, Tampa,

for Appellee.

NORTHCUTT, Judge.

A jury convicted Aaron Shaw of one count of battery on a Florida Civil 

Commitment Center staff member. Shaw's trial was tainted by a trial court order 

requiring Shaw to either wear a stun belt or leave the courtroom. We therefore reverse 

Shaw's conviction and remand for a new trial.
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Shaw's trial began with his objection to the trial court's pretrial ruling that 

he would be required to wear a stun belt in the courtroom. Shaw complained that he 

has mental and emotional issues that can be exacerbated by wearing a stun belt. 

Based on past experience, he feared that wearing the device would be a trigger that 

would cause him to act out in the courtroom, disrupt the proceedings, and lead to his 

being stunned. He urged the court in lieu of his wearing a stun belt to post a deputy 

near him to alleviate any concern the court might have.1

1At trial, the State did not contest Shaw's claim that he suffers from 

schizophrenia and antisocial disorder, and it has expressly acknowledged the latter 

diagnosis in its answer brief. Shaw pleaded with the court:

Well, the problem is, Judge I'm schizophrenic, right? And I 

got -- I showed her the record. I got the paperwork, right? 

And I have a -- it triggers me. Every courtroom I've been in 

them, I had psychiatrists -- I didn't bring the transcripts from 

that, but they told the judges this is a trigger for Mr. Shaw. 

Mr. Shaw can behave himself, he's not going to act out 

inappropriate, but if you put this belt on him -- any kind of 

stimuli, you put the stimuli on him and, you know, it steers 

the fear and then -- which elevates me, you know, creates 

me to, you know -- to -- to do inappropriate stuff.

So I don't -- in order for me to be conscious and 

appropriate and assistant, and behavior, you know, it's not to 

have all these interferences; okay? I've never -- I've always 

given you my word, Judge. If I tell you this not going to be a 

problem, I'm not going act out, I'm not going to try to swing 

on anybody, I'm not going to get upset in the courtroom and 

do something stupid, you know? But these stimuli, it's just 

like a person being afraid of heights, you know? A person 

being afraid to swim in water. I'm afraid of what -- the 

thought, you know, just thought itself triggers me.

And I just got finished speaking to your deputies and I 

was telling them that in the past what they have done is 

provided -- if they was able to, extra security or whatever or 

put somebody by me or whatever, if they had a problem. 

Everything always went -- went without incident, no problem, 
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Unpersuaded, the trial court told Shaw that he could either sit in the 

courtroom wearing the stun belt or sit outside the courtroom, listen to the trial through 

an earpiece, and have his counsel come out and talk with him between witnesses. 

Shaw chose the latter option and confirmed for the court that he was waiving his 

appearance: "Due to the belt, yes, because it's a trigger for me, it's a trigger. So it's 

going to create a disruption in the Court, you know? I'm not going to cause that on 

myself or anybody else. I can't wear that belt."

Shaw was absent for all of jury selection, opening statements, and the 

testimony of the first seven witnesses, including several eyewitnesses to the alleged 

battery. He returned to the courtroom for the State's last witness, the victim in the case. 

There was no discussion on the record describing why he decided to return or indicating 

whether he was wearing the stun belt. The court merely stated, "For the record, Mr. 

Shaw is present in the courtroom now." Shaw attended what remained of the trial and 

testified in his defense without incident or further discussion of the stun belt. He was 

convicted as charged and sentenced to five years in prison.

The trial court's unelaborated order requiring Shaw to wear a stun belt was 

error. A defendant has the right to be free of physical restraints, such as shackles and 

so forth, when in the presence of the jury. Weaver v. State, 894 So. 2d 178, 193 (Fla. 

2004). The right is not absolute, and "[r]estraints 'may be necessary to prevent the 

even in the jail. The jail over there, I never had incident. No 

incident of violence or anything, you know?

So it's just stimuli. I just show[ed] her my paperwork. 

I left it on the bench in there where it shows that I -- that I do 

have these issues, you know?
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defendant from disrupting the trial . . . and to protect the physical well-being of the jury, 

lawyers, judge, and other trial participants.' " Id. (quoting Israel v. State, 837 So. 2d 

381, 390 (Fla. 2002)). The use of restraints is within the discretion of the trial court, id., 

"provided that [the court] has made the requisite findings that such shackles are 

necessary." Hernandez v. State, 4 So. 3d 642, 658 (Fla. 2009) (emphasis added). The 

principles governing the use of physical restraints at trial apply as well to the use of stun 

belts. Weaver, 894 So. 2d at 193.

Here, the trial court made no finding that could have justified requiring 

Shaw to wear a stun belt in the presence of the jury. At the beginning of the trial there 

was a protracted discussion of the stun belt, but that exchange focused on Shaw's 

opposition to wearing the belt and his explanation for his reluctance to do so. Although 

the court expressed its desire "to enforce the security measures in the courtroom," 

neither the State nor the court expounded on the need for the belt specifically in Shaw's 

case, e.g., whether Shaw's history included violent convictions, violent outbursts, 

courtroom disruptions, or the like. Cf. Miller v. State, 852 So. 2d 904, 905 (Fla. 4th DCA 

2003) (holding that restraints were unjustified when "[n]othing in the record indicate[d] 

that [the defendant] had any courtroom outbursts or otherwise demonstrated a potential 

escape or injury risk while in court"). 

Moreover, Shaw's prior convictions (for sexual battery, kidnapping, and 

battery on a law enforcement officer) would not in themselves have been enough to 

warrant the use of restraints without additional evidence of prior courtroom disruptions, 

a genuine threat to public safety, or a risk of escape. See id. ("[The defendant's] prior 

armed robbery convictions, the most recent in 1985, are not sufficient alone to 
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necessitate the extreme restraint measures that were used here [(handcuffs, a waist 

chain, leg irons, and a stun belt)]."); see also Smith v. State, 41 So. 3d 1081, 1088 (Fla. 

2d DCA 2010) (differentiating between disruptive behavior outside the courtroom and 

disruptive behavior inside the courtroom, the former of which does not necessarily 

justify the use of restraints). 

In most cases involving physical restraints, the attendant prejudice lies in 

the jury's awareness that the defendant is restrained. See Miller, 852 So. 2d at 905 

("Allowing a defendant to appear before the jury in restraint devices is an inherently 

prejudicial practice that undermines the presumption of innocence and the right to a fair 

trial."). But in this case the record does not reflect whether the jury was aware that 

Shaw was absent because he would not wear the stun belt, nor can we discern whether 

the jury might have been aware that he was wearing the belt when he eventually 

appeared late in the trial, if he was indeed wearing one at that point. If either of those 

occurred, of course, Shaw would be entitled to a new trial on that basis alone.

Either way, however, it is certain that the trial court's unsupported 

insistence that Shaw wear a stun belt effectively deprived him of his right to be present 

during most of his trial. We reject the State's argument that Shaw's nonattendance was 

voluntary and that he waived his right to be present. Manifestly, under the 

circumstances of this case Shaw's absence was not truly voluntary. See generally 

Turner v. State, 530 So. 2d 45, 49 (Fla. 1987) ("A defendant's waiver of the right to be 

present at essential stages of trial must be knowing, intelligent and voluntary." (citing 

Amazon v. State, 487 So. 2d 8 (Fla. 1986))). 
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Unsurprisingly, we have not found any case law addressing voluntariness 

in this unique circumstance. This is not the typical situation in which a defendant 

attempts to evade capture or to frustrate the judicial process by fleeing or otherwise 

refusing to attend trial. See, e.g., Capuzzo v. State, 596 So. 2d 438, 440 (Fla. 1992) 

(fleeing); Dufour v. State, 495 So. 2d 154, 161 (Fla. 1986) (hunger-strike-induced 

hospitalization). Rather, the trial court forced Shaw to elect either to abandon his right 

to attend his trial or to comply with an unjustified order that he wear a restraint that likely 

would disrupt the proceedings and severely prejudice him before the jury. It is 

impossible to conclude that Shaw voluntarily absented himself or that he willingly 

waived his Sixth Amendment right to be present for his trial.

The question remains whether this violation of that right was harmless.

A violation of the right to be present is subject to a 

harmless error analysis. See Smithers v. State, 826 So. 2d 

916, 927 (Fla. 2002). "In other words, when the defendant is 

involuntarily absent during a crucial stage of adversary 

proceedings contrary to rule 3.180(a), the burden is on the 

state to show beyond a reasonable doubt that the error 

(absence) was not prejudicial." Garcia v. State, 492 So. 2d 

360, 364 (Fla. 1986). "[W]hile rule 3.180(a) determines that 

the involuntary absence of the defendant is error in certain 

enumerated circumstances, it is the constitutional question 

of whether fundamental fairness has been thwarted which 

determines whether the error is reversible." Id. Under this 

standard, we have found harmless error where the 

defendant suffered no prejudice from his absence, "the 

defendant would not have been able to assist his counsel in 

opposing adverse rulings," or "no adverse rulings were made 

outside the defendant's presence." Ault v. State, 53 So. 3d 

175, 202 (Fla. 2010) (citing Pomeranz v. State, 703 So. 2d 

465, 471 (Fla. 1997); Roberts v. State, 510 So. 2d 885, 890–

91 (Fla. 1987); Garcia, 492 So. 2d at 363).

Jordan v. State, 143 So. 3d 335, 338–39 (Fla. 2014).
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The State contends that Shaw's absence from the trial was harmless 

because he received constructive notice of the proceedings through his counsel's 

presence in the courtroom. We find this argument unpersuasive.

Constructive notice of trial proceedings may be imputed to a defendant 

"when a defendant is absent from a portion of his trial, where he knew or should have 

known of the proceedings, . . . when he is represented by counsel to whom he has not 

objected, and when his counsel waives objection to the defendant's absence." State v. 

Melendez, 244 So. 2d 137, 139 (Fla. 1971). But this principle is "limited to those cases 

in which the defendant, upon his reappearance at his trial, acquiesces in or ratifies the 

actions taken by his counsel during his absence." Id. Indeed, a waiver of this kind may 

be found only when, upon the defendant's return, he "freely and willingly, knowingly and 

with understanding, waives objection to and ratifies the actions taken by his counsel." 

Id. at 140. This does not mean "that a defendant's absence due to lack of notice or 

which is otherwise involuntary can be subsequently cured by defendant's silent 

acquiescence in continuation of his trial, without a showing of actual or constructive 

knowledge." Id. 

In this case, Shaw never in any way ratified anything that occurred at his 

trial when he was outside the courtroom. He merely reappeared; whereupon the trial 

continued without any comment from Shaw, without any discussion of the proceedings 

that occurred in his absence, and without any indication that Shaw even knew what had 

transpired. To the contrary, at one point after defense counsel returned to the 

courtroom after consulting with Shaw, he reported that Shaw was not even wearing the 

earpiece that would have enabled him to listen to the trial. At most, this was merely a 
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"silent acquiescence in continuation of his trial." Id. at 140. Thus, Shaw's involuntary 

absence from his trial was not cured or waived by the presence of his attorney and his 

mere failure to object upon returning. The error here was not harmless. 

We reverse Shaw's conviction and remand for a new trial. Should the trial 

court believe, in its discretion, that special restraints such as the stun belt are justified at 

Shaw's retrial, it must make express and specific findings on the record explaining that 

decision.

Reversed and remanded.

LaROSE and SMITH, JJ., Concur.