DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARKERIA ROSHAWN HILLSMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-530

[March 20, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Robert L. Pegg, Judge; L.T. Case No. 

312013CF000607A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

The appellant challenges his conviction for possession of cocaine and 

raises numerous issues, three of which we find have merit. 

On the morning of the scheduled docket call (Monday), the appellant

appeared in court with his public defender, who informed the judge that 

the appellant had “indicated that he has hired a private attorney.” The 

judge refused to entertain the matter: “And [the private lawyer is] not 

here this morning so . . . I’m not interested in that.” The judge informed 

the appellant that jury selection would commence on the instant Monday

morning. After taking up other matters, the court revisited the 

appellant’s case. At that point, the appellant’s public defender again

informed the court that the appellant was focused on hiring private 

counsel and therefore sought a continuance “for his private attorney.” 

The court denied the request and stated that opening statements and the 

presentation of evidence would begin the next day (Tuesday) but jury 

selection would commence after a brief recess.
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After the recess, the judge took the bench and the appellant was not 

present. The trial judge made the following statement:

Mr. Hillsman was present [earlier] during docket call. He has 

absented himself voluntarily, so I know he’s in the building. 

I’ll tell you what let’s do, just try his case. He was here. I 

know he was here. He wasn’t in any physical distress. So 

we’ll pick a jury without him being here.

The court denied the public defender’s additional motion for a 

continuance. 

The public defender’s objection notwithstanding, the trial court began 

voir dire and during the process, prospective jurors made comments 

regarding the appellant’s absence. When one prospective juror was 

asked about his feelings regarding the drug charge, he responded that he 

could be fair, but he “question[ed] why the defendant’s not here.” When 

questioned about his ability to apply the presumption of innocence, the 

same prospective juror reiterated that he “question[ed] why he’s not 

here.” Later during voir dire, defense counsel asked another prospective 

juror about her feelings regarding the charge, and she responded, “I don’t 

like the idea he’s not here. That’s number one.” She further stated that 

the appellant’s absence would serve as a strike against him. Still a third 

prospective juror also indicated he was troubled with the appellant’s 

absence. When a fourth prospective juror wondered aloud whether the 

appellant was required to be there, counsel responded that the appellant 

was not obligated to be there. 

This led the judge to call the attorneys to the bench for a sidebar. The 

trial judge then instructed the public defender not to ask any more 

questions about the appellant’s absence because “Mr. Hillsman has put 

himself in this position [and] [h]e’s not going to take advantage of the 

jurors who say that’s a problem because, he chose not to be here today 

after being here this morning.”

The public defender then asked a prospective juror if he would have a 

problem with the appellant not testifying, and the man stated, 

“[T]estifying, no. Presence, yes.” Another prospective juror interjected, 

“Are you going to answer the question of . . . was he supposed to be here 

today? . . . I mean . . . that would make a difference if he’s not following 

what he’s supposed to be doing.” The exchange apparently did not alarm 

the court, as it did not change its ruling regarding the restriction on voir 

dire or otherwise sua sponte suggest revisiting its earlier ruling. Of the 

prospective jurors who made statements regarding the appellant’s 
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absence, two were actually seated on the jury - one of them serving as 

foreperson.

At the close of jury selection, defense counsel accepted the jury and 

did not object when the jurors were sworn. 

The next morning, prior to the empaneled jury returning to the 

courtroom to hear preliminary jury instructions and opening statements, 

the judge made the following statement:

All right. I understand there’s an issue about whether we 

can go forward with Mr. Hillsman’s case because we did start 

the case without him being present. I would note that Mr. 

Hillsman appeared at the docket call in this case, was 

informed of the trial date, appeared the morning of the trial 

date, was told we were proceeding, getting ready to pick a 

jury and then absented . . . himself giving no reason. He 

was walking. There’s no, I mean, he looked fine. There’s no, 

I heard no reason why he wasn’t here. 

The public defender argued that it would be reversible error to 

proceed to trial, as the appellant was not present for the beginning of voir 

dire and thus was not present for the actual commencement of trial. The 

court rejected the argument, finding the following:

He wanted a continuance because he wanted time to get a 

private lawyer where the continuance was denied. . . . Mr. 

Hillsman . . . just absented himself because he didn’t want 

to go forward in the case with absolutely no legitimate 

reason whatsoever.

The trial proceeded without the defendant and the jury returned a 

relatively quick guilty verdict. This appeal follows.

Trying The Defendant In His Absence

We turn first to the trial court’s decision to try the appellant in 

absentia. The Florida Supreme Court has elaborated on a defendant’s 

right to be present during criminal proceedings against him:

[C]riminal defendants have a due process right to be 

physically present in all critical stages of trial, including the 

examination of prospective jurors. Florida Rule of Criminal 

Procedure 3.180(a) recognizes this right, providing that in all 
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criminal prosecutions the defendant shall be present “at the 

beginning of the trial during the examination, challenging, 

impanelling, and swearing of the jury.” Fla. R. Crim. P. 

3.180(a)(4). However, when a defendant voluntarily absents 

himself from the courtroom, rule 3.180(c) provides:

Defendant Absenting Self. If the defendant is present at 

the beginning of 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, the trial of the cause or the return of the verdict of 

the jury in the case shall not thereby be postponed or 

delayed, but the trial, the submission of the case to the 

jury for verdict, and the return of the verdict thereon 

shall proceed in all respects as though the defendant 

were present in court at all times.

Israel v. State, 837 So. 2d 381, 386-87 (Fla. 2002) (internal citation 

omitted). See also Fla. R. Crim. P. 3.180(a)-(c). “In situations involving 

violations of rule 3.180, ‘it is the constitutional question of whether 

fundamental fairness has been thwarted which determines whether the 

error is reversible.’” Pomeranz v. State, 703 So. 2d 465, 471 (Fla. 1997) 

(quoting Garcia v. State, 492 So. 2d 360, 364 (Fla. 1986)). 

Indeed, the rule could not be more straightforward. For purposes of 

rule 3.180(c), a jury trial commences when jury selection begins. See 

Daniels v. State, 587 So. 2d 460, 461 (Fla. 1991). A defendant’s failure to 

appear during pre-trial proceedings may not serve as a presumption that 

a defendant has voluntarily absented himself after trial has commenced. 

Appellant Hillsman failed to appear (in this case, reappear after a recess) 

at the morning docket call. The “docket call” employed by the trial judge 

was a pre-trial court event under well-established precedent. Jarrett v. 

State, 654 So. 2d 973, 975 (Fla. 1st DCA 1995) (citations omitted).1 To 

1 Although the issue is not before us, it is worth noting that a defendant who 

has absented him or herself after trial commences and then reappears upon 

completion of the trial, may, in limited circumstances, have a justifiable excuse 

for the failure to appear:

We recognize that there are circumstances which justify a court’s 

completion of a trial in the defendant’s absence where the 
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be sure, for purposes of rule 3.180(c), a trial is considered commenced 

when the first prospective juror enters the courtroom. 

Here, although apparently no reason was given for the appellant’s 

absence, his trial had clearly not yet commenced. Simply put, because it

had not begun, the court abused its discretion by proceeding to conduct 

the defendant’s trial in his absence. See Jarrett, 654 So. 2d at 975-76. 

Under these facts, the court had unbridled authority to issue a bench 

warrant or capias when it became clear that the appellant knew he was 

supposed to be in the courtroom to begin his trial . . . but wasn’t. In any 

case, however, the trial court was required to postpone the trial.

Restrictions On Voir Dire

The appellant next argues that his right to a fair and impartial jury 

was compromised when the court restricted defense counsel’s voir dire 

on the topic of the appellant’s absence. Because the issue was not 

preserved, he contends the error was required to be and was, in fact,

fundamental.2 We agree.

Although “[a] trial judge has ‘considerable discretion in determining 

the extent of counsel’s examination of prospective jurors,’” the judge 

‘“must allow counsel the opportunity to ascertain latent or concealed 

prejudgments by prospective jurors.’” Campbell v. State, 812 So. 2d 540, 

542 (Fla. 4th DCA 2002) (quoting Miller v. State, 683 So. 2d 600, 602 

(Fla. 2d DCA 1996)). “Whether a trial judge should have allowed 

 

defendant has absented himself after the trial’s commencement. 

See State v. Melendez, 244 So. 2d 137 (Fla. 1971). In such a case, 

the burden is on the defendant, after his apprehension or 

appearance, to establish that his absence was not voluntary. 

Mulvey v. State, 41 So. 2d 156 (Fla.1949).

Godwin v. State, 501 So. 2d 154, 155 (Fla. 1st DCA 1987) (emphasis in 

original).

2 Errors in rulings related to restriction of voir dire are waived if the defendant 

accepts the jury unless the error is fundamental. Green v. State, 679 So. 2d 

1294, 1294 (Fla. 4th DCA 1996) (finding that possible error in voir dire based 

on time limits imposed by trial court was not preserved where defendant 

affirmatively accepted the jury without renewing prior objection); Stripling v. 

State, 664 So. 2d 2, 3 (Fla. 3d DCA 1995) (finding court’s rulings restricting 

defendant’s voir dire not preserved where defendant affirmatively accepted the 

jury upon selection of the twelfth juror and did not renew his objection prior to 

jury being sworn).
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interrogation of jurors on specific subjects is reviewed under an abuse of

discretion standard.” Davis v. State, 698 So. 2d 1182, 1190 (Fla. 1997) 

(citation omitted). 

Florida Rule of Criminal Procedure 3.300(b) provides for a defendant’s 

right to examine prospective jurors. “The purpose of voir dire is to obtain 

a ‘fair and impartial jury to try the issues in the cause.’ King v. State, 

390 So. 2d 315, 319 (Fla. 1980). For example, time restrictions or limits 

on numbers of questions can result in the loss of this fundamental 

right.” Williams v. State, 424 So. 2d 148, 149 (Fla. 5th DCA 1982). 

Further, trial courts should permit questions on jurors’ attitudes about 

issues where those attitudes are “essential to a determination of whether 

challenges for cause or peremptory challenges are to be made . . . .” 

Walker v. State, 724 So. 2d 1232, 1233 (Fla. 4th DCA 1999) (citation 

omitted). See also Ingrassia v. State, 902 So. 2d 357, 359 (Fla. 4th DCA 

2005) (“[A] court may not preclude a party from inquiry into bias bearing 

on a matter that is at the heart of the defendant’s case.”). 

Here, the trial court restricted defense counsel’s examination as to the 

prospective jurors’ attitudes about the appellant’s absence, a matter that 

was conspicuously raised by numerous prospective jurors without, 

interestingly, the need for any prompting. Even after the court restricted 

defense counsel’s examination, and even after counsel attempted to steer 

the prospective jurors toward another avenue of inquiry, the matter was

again raised by more than one prospective juror. Under these 

circumstances, it could be nothing other than fundamental error for the 

court to restrict examination on the issue of the appellant’s quite 

noticeable absence.

Denial Of Motion For Continuance Without Inquiry

We also reverse based on a third error. The appellant contends that

the court erred in failing to conduct an inquiry when court-appointed 

counsel informed the court that the appellant had retained private 

counsel and was seeking a continuance. “We review the denial of a 

motion to substitute counsel and the trial court’s ruling on a motion for 

continuance under an abuse of discretion standard.” Alvarez v. State, 75 

So. 3d 420, 422 (Fla. 4th DCA 2011).

“The Sixth Amendment of the United States Constitution protects the 

right of a criminal defendant to be represented by the attorney of his or 

her own choosing.” Id. However, the right is not absolute. Id. This 

court has elaborated on the trial court’s exercise of discretion when a 

defendant requests substitution of counsel:
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[A] defendant does not have an absolute right to a particular 

lawyer and . . . it is within a trial court’s discretion to deny a 

defendant’s request for particular counsel when there is a 

“countervailing public interest in the fair and orderly 

administration of justice.” For example, a defendant’s 

invocation of the right to choose his own attorney may not be 

made in bad faith or “for the sake of arbitrary delay or to 

otherwise subvert judicial proceedings.” 

Id. (citations omitted). 

[A]ny denial of an accused’s request for a continuance to 

retain counsel of choice must be based on an adequate 

inquiry into the surrounding circumstances and “proper 

findings to show that the defendant’s constitutional right is 

not being arbitrarily denied.” The trial court’s ruling should 

focus on balancing “the defendant’s right to counsel of his 

own choosing with considerations of judicial administration.”

In this regard, we have previously considered several 

relevant factors, including: whether the motion is being 

made in bad faith or as a delay tactic; whether a 

continuance would prejudice the State; or whether the 

court’s schedule would not permit a continuance.

Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA 2014) (emphasis added)

(quoting Alvarez, 75 So. 3d at 422-23). Further,

While the constitutional right to have counsel of one’s own 

choosing represent a defendant at trial may yield to 

considerations of the administration of justice, not every 

request to substitute counsel on the eve of trial may 

sufficiently impact those considerations such that a request 

may be denied without inquiry and without the court making 

proper findings to show that the defendant’s constitutional 

right is not being arbitrarily denied.

Alvarez, 75 So. 3d at 423 (emphasis added).

When our courts have affirmed a trial court’s denial of a motion for 

continuance where a defendant was seeking to replace court-appointed 

counsel with private counsel, the trial court had conducted the required

inquiry. See, e.g., Lelieve v. State, 7 So. 3d 624, 625 (Fla. 3d DCA 2009);

Evans v. State, 741 So. 2d 1190, 1191 (Fla. 4th DCA 1999). Here, no 
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inquiry of any kind was made. Additionally, it must be noted, the record 

does not reflect that the state would have suffered any prejudice, that the 

court was unable to continue what in essence was a “simple possession 

of cocaine case,” or that the appellant’s request was necessarily made in 

bad faith or for purposes of undue delay. Nor does the record reflect that 

the case had grown old. Quite the contrary, the information was filed 

against the appellant in June 2013, and appellant’s trial began in 

February 2014. 

As for the appellant’s remaining issues on appeal, we find them to be 

moot or without merit.

Based on the foregoing, the appellant is entitled to a new trial. 

Reversed and remanded for new trial.

STEVENSON and TAYLOR, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.