DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HARVEY MICHAEL HILL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-272

[April 25, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Dina A. Keever-Agrama, Judge; L.T. Case No. 

09CF006916AMB.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public 

Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

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

KLINGENSMITH, J.

Appellant Harvey Hill appeals his sentence entered after a violation of 

probation (“VOP”) hearing by raising four issues on appeal. First, whether 

the trial court abused its discretion by failing to permit appellant to reopen 

his case after both parties had delivered their closing arguments. Second, 

whether the trial court failed to conduct an adequate Faretta inquiry when 

he asked to fire his attorney. Third, whether the trial court erred in 

denying appellant opportunities to make arguments on his own behalf at 

sentencing following the violation hearing. And fourth, whether a

successor judge properly filed a written probation revocation order and 

denied appellant’s rule 3.800(b)(2) motion based on rulings by a prior 

judge who had previously recused herself sua sponte. We affirm as to 

issues one and two without comment, but find that issue three has merit. 

We reverse for new sentencing on that ground, thus making the fourth 

issue moot.

At the end of his VOP hearing and following the close of the evidence 

and closing arguments, appellant was granted the right to discharge his 
2

attorney. He conducted the remainder of the hearing pro se, but with 

standby counsel available. While proceeding pro se, appellant made 

several requests to present additional evidence to the court, but the trial 

judge denied those requests. 

Thereafter, as the court attempted to orally pronounce its ruling, 

appellant interrupted and made an ore tenus motion to disqualify the trial 

judge. This motion was also denied. 

Then, without fully declaring its ruling on the VOP, the court asked for 

recommended sentences. The State recommended fifteen years in prison 

with credit for time served. Soon after, the following exchange occurred:

[THE STATE]: And Judge, actually I’m sorry, did you make findings 

in relations to the violations? I think you asked for --

THE COURT: I haven’t yet; I’m getting ready to do that.

[THE STATE]: Okay. 

[APPELLANT]: Well, I would like to speak on my behalf, Judge.

THE COURT: All right.

[APPELLANT]: When you get a chance.

THE COURT: I’m finding the State has proven by preponderance --

[APPELLANT]: I would like to speak --

THE COURT: -- of the evidence -- sir? Uhm, the State has proven 

by a preponderance of the evidence that you were based on the 

testimony that we heard on March 14th, 2016 as well as December 

1st, 2016 as well as the evidence presented today the Court has 

taken into consideration all that evidence finding that the State has 

proven by a preponderance of the evidence that you were informed 

of your conditions of probation by a probation officer at the time - -

soon after your sentence soon after you were placed on probation.

The court went on to find that appellant violated numerous conditions 

of probation, revoked and terminated that probation, and sentenced 

appellant to ten years in prison with credit for time served. The court 

never provided appellant the opportunity to make an allocution prior to 

imposing sentence. For the reasons set forth below, this was error.
3

“We have de novo review of a trial court’s compliance with the 

guarantees of due process.” Flegal v. Guardianship of Swistock, 169 So. 

3d 278, 281 (Fla. 4th DCA 2015). 

The appellant did not make a contemporaneous objection to the court’s 

failure to allow him to allocute before pronouncing sentence. Where the 

issue is not preserved, to qualify as fundamental error the error “must be 

basic to the judicial decision under review and equivalent to a denial of 

due process.” Id. at 575 (quoting Hopkins v. State, 632 So. 2d 1372, 1374 

(Fla. 1994)). However, if a defendant, or his counsel, makes it clear that 

he or she intends to offer an unsworn statement to the court, then the 

issue is properly preserved for appellate review. See Jean-Baptiste v. State, 

155 So. 3d 1237, 1240 (Fla. 4th DCA 2015); see also Jackson v. State, 983 

So. 2d 562, 578 (Fla. 2008). We therefore review this case de novo because 

appellant made a clear request to make an unsworn statement prior to 

sentencing.

Florida Rule of Criminal Procedure 3.720(b) imposes requirements on 

trial judges pertaining to sentencing. This rule states, “The court shall

entertain submissions and evidence by the parties that are relevant to the 

sentence.” (Emphasis added).

As this court noted in Jean-Baptiste:

In Florida, defendants in capital cases have a right to make 

an unsworn statement to the judge prior to sentence being 

imposed. See Troy v. State, 948 So. 2d 635, 648 (Fla. 2006)

(recognizing that a defendant in a capital case has the right to 

“allocate” before the judge prior to sentencing, pursuant to

Spencer v. State, 615 So. 2d 688 (Fla. 1993)), but that any 

statement to the jury during the sentencing phase must be 

subject to cross-examination). Florida cases do not address 

whether allocution involves an unsworn statement in noncapital cases. See Ryan v. State, 78 So. 3d 14, 15 (Fla. 3d

DCA 2011) (Emas, J., concurring in part and dissenting in 

part) (opining that sentencing courts should not be permitted 

to sua sponte raise a defendant’s apparent lack of remorse, as 

this would “risk forcing a defendant to choose between 

maintaining his innocence after trial . . . and a defendant’s 

right to allocution before sentencing”) (citing Rule 3.720(b));

Witt v. State, 983 So. 2d 708, 708 (Fla. 5th DCA 2008)

(accepting state’s concession to defendant’s claim that his 

“allocution rights” were violated when court did not give him 
4

opportunity to speak or present evidence at sentencing); Adler 

v. State, 382 So. 2d 1298, 1304 (Fla. 3d DCA 1980) (“The court 

denied the motion to vacate the guilty plea, gave the defendant 

his allocution rights and pronounced sentence”); Adams v.

State, 376 So. 2d 47, 56 (Fla. 1st DCA 1979) (“The court 

otherwise remains free to inform itself as in ordinary 

sentencing through presentence report hearsay, subject to the 

defendant’s right to produce his own witnesses, and his right 

of allocution”).

In Barlow v. State, 784 So. 2d 482 (Fla. 4th DCA 2001), we 

described the defendant’s pre-sentence unsworn submission 

as an “allocution hearing” which we defined “as an 

opportunity for the defendant to make an unsworn statement 

to mitigate the sentence or for a crime victim to make a 

statement relevant to sentencing.” Id. at 483 n.1 (Fla. 4th

DCA 2001) (citing Black’s Law Dictionary 75 (7th ed. 1999));

see also People v. Evans, 44 Cal. 4th 590, 80 Cal. Rptr. 3d 

174, 187 P.3d 1010, 1012 n.2 (2008) (“The word ‘allocution’

has often been used for a mitigating statement made by a 

defendant in response to the court’s inquiry.” (Citation 

omitted)); Craig v. State, 179 So. 2d 202, 206 (Fla. 1965)

(Ervin, J., dissenting) (“Appellant refers to the fact that a 

defendant usually has the right of allocution; that is, the right 

to express without restraint to his sentencer why judgment or 

sentence should not be meted out to him.”).

We now make clear what Barlow, Larrieux, Chillingworth, Witt,

and Dean have long implied: that a criminal defendant prior 

to sentencing has the opportunity to make an unsworn 

statement to the sentencing judge in allocution. Like the 

receipt of unsworn letters, the opportunity of the defendant to 

“allocute” gives the defendant a chance to express to the 

sentencing court any additional information to aid the court 

in making a sound and reasoned judgment on the most 

important matter upon which it is called to judge, that is, the 

appropriate sentence to be meted out to the convicted criminal 

defendant.

155 So. 3d at 1241-42. For our holding, we relied on several cases from 

this court recognizing a defendant’s right of allocution. 

For example, in Larrieux v. State, 138 So. 3d 1221, 1221-22 (Fla. 4th 

DCA 2014), we held:
5

Immediately after the trial court found Larrieux in violation of 

his probation, it sentenced Larrieux to forty years in prison, the 

maximum penalty he faced based on the charges for which he 

was on probation, without giving Larrieux or his counsel an 

opportunity to present any evidence or argument in mitigation 

prior to imposing the sentences.

Florida Rule of Criminal Procedure 3.720(b) states that, at a 

sentencing hearing, “[t]he court shall entertain submissions 

and evidence by the parties that are relevant to the sentence.” 

Because we find that the trial court departed from the essential 

requirements set forth in rule 3.720(b), we reverse the sentence 

and remand the case for a new sentencing hearing.

(Emphasis added). 

On this issue, our sister courts agree. For example, the Third District 

has held:

[U]nder Florida Rule of Criminal Procedure 3.720(b), before 

imposing sentence the trial court is required to “entertain 

submissions and evidence by the parties that are relevant to 

the sentence.” Under the rule, defendant was entitled to make 

a statement to the court. See Culbertson v. State, 306 So. 2d 

142, 143 (Fla. 2d DCA 1975). As we view the matter, the 

opportunity to address the court must be allowed even if the 

case involves a mandatory sentence. Respecting the right of 

the defendant to address the court “maximiz[es] the perceived 

equity of the process . . . .” American Bar Association 

Standards for Criminal Justice § 18-5.17 commentary at 208 

(3d ed. 1994). Where the court refuses to hear a statement by 

the defendant, the case must be remanded for a new 

sentencing hearing. See Davis v. State, 642 So. 2d 136, 137 

(Fla. 3d DCA 1994); Hargis v. State, 451 So. 2d 551, 552 (Fla. 

5th DCA 1984).

Ventura v. State, 741 So. 2d 1187, 1189 (Fla. 3d DCA 1999) (emphasis 

added). 

In an analogous case that was also cited as a basis for this court’s 

ruling in Jean-Baptiste, the Fifth District observed in Witt:
6

William Witt appeals the sentences entered against him after 

his violation of probation. He argues that his allocution rights 

were violated because the court never gave him an opportunity 

to speak or present evidence at the sentencing hearing. The 

State concedes error and the record reveals that Witt never had 

an opportunity to offer evidence or make a statement to the 

court, as required by Florida Rule of Criminal Procedure 3.720. 

Accordingly, we reverse Witt’s sentences and remand for a new 

sentencing hearing.

983 So. 2d at 708 (emphasis added); accord Dean v. State, 60 So. 3d 532, 

533 (Fla. 1st DCA 2011) (“The trial court erred in failing to give Appellant 

. . . the opportunity to address the court before imposing sentence,

pursuant to Florida Rule of Criminal Procedure 3.720(b).”).

Thus, Florida case law makes it clear that the right to allocution must 

be afforded to a defendant prior to sentencing in a VOP hearing, just as 

that same opportunity must be provided before sentencing in any other 

criminal trial or proceeding. See Larrieux, 138 So. 3d at 1221-22; Dean, 

60 So. 3d at 533; Witt, 983 So. 2d at 708. Appellant’s due process rights 

were violated in this case because he was not given the chance, despite his 

request, “‘to make an unsworn statement to mitigate the sentence . . . .’” 

Jean-Baptiste, 155 So. 3d at 1242 (quoting Barlow, 784 So. 2d at 483 n.1).

Appellant’s request to speak to the court on his own behalf may have been 

interpreted by the trial judge as yet another attempt to delay the 

conclusion of the hearing. But giving appellant the benefit of the doubt, it 

could be just as likely that he was requesting his right to allocute before 

receiving his sentence.

We reverse and remand this matter for the successor trial judge to 

conduct a new sentencing hearing that provides appellant the opportunity 

for allocution before sentencing. See Ventura, 741 So. 2d at 1189. We 

leave the decision as to what sentence should ultimately be imposed to the 

sound discretion of the court.

Affirmed in part, reversed in part, and remanded.

WARNER and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.