        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.
   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

                                      7
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.




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