       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             JESSICA SERNA,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-1619

                            [February 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 17002361CF10A.

  Carey Haughwout, Public Defender, and Jaime Lapidus, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Jessica Serna appeals her sentence stemming from multiple
charges of fraudulent practices and theft. Appellant argues that the trial
court violated her right to due process in rejecting her request to be placed
under oath at her sentencing hearing because 1) the court was required to
entertain submissions and evidence in mitigation, and 2) she had the right
to allocution prior to sentencing. Because we find that it was error to deny
Appellant an opportunity to present mitigation testimony to rebut issues
raised by the State and the trial court during sentencing, we reverse her
sentence and remand for a new sentencing hearing.

                               Background

    Appellant was charged with one count of trafficking in counterfeit credit
cards, two counts of defrauding a financial institution, one count of
criminal use of personal identification information, two counts of credit
card forgery, and one count of misdemeanor petit theft. The trial court
accepted her no contest plea to all charges and a sentencing hearing
followed.
   Defense counsel requested that the court withhold adjudication,
arguing that Appellant “has a drug problem” and is “amenable for
treatment,” had no prior felony criminal history, and that her nonviolent
crimes were “a[n] isolated incident” done in an unsophisticated manner.
As the State began to object to the characterization of the crimes as
unsophisticated, the trial court interjected that, “absent a showing of
remorse,” it could not grant the request for a withhold of adjudication. The
State added that there was no evidence presented that Appellant had a
substance abuse issue or that she was amenable to treatment.

   The court then asked defense counsel for the “[l]ast word.” Defense
counsel requested that Appellant be placed under oath, which entreaty the
court summarily denied. Defense counsel replied, “But that was my only
argument[], Judge. Based off the circumstances and based off of mitigator
reasons in the downward departure statute, I believe this is an individual
that should receive a withhold.”

   The trial court denied the defense’s request to withhold adjudication,
adjudicated her guilty, and imposed a ten-year probationary sentence. On
appeal, Appellant argues that she was “never given the chance to address
the sentencing court,” and this denial “violated appellant’s due process
right to allocution and went against the sentencing court’s mandatory
obligations to entertain evidence relevant to the sentence.”

                                   Analysis

    We review a trial court’s compliance with the guarantees of due process
de novo. Hill v. State, 246 So. 3d 392, 394 (Fla. 4th DCA 2018)
(citing Flegal v. Guardianship of Swistock, 169 So. 3d 278, 281 (Fla. 4th
DCA 2015)).

   Appellant contends that despite her request, she was denied the chance
to address the court concerning a withhold of adjudication. 1 At trial,


1 Appellant’s initial brief also asserts that she was denied the opportunity to
allocute. A statement in allocution is an unsworn statement by the defendant to
the court that is not subject to cross-examination and potential perjury, and
where the defendant can speak freely to the court and express “any additional
information to aid the court in making a sound and reasoned judgment . . . .”
Jean-Baptiste v. State, 155 So. 3d 1237, 1242 (Fla. 4th DCA 2015). In the instant
case, defense counsel requested that Appellant be sworn, and did not otherwise
place the trial court on notice that Appellant sought an opportunity to allocute.
Thus, we do not address this issue on appeal.

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defense counsel argued that, based on section 775.08435, Florida
Statutes, the trial court may withhold adjudication if there are mitigating
circumstances such as those set forth in the downward departure statute
(section 921.0026, Florida Statutes). Specifically, Appellant maintained
that “this crime was committed in an unsophisticated manner and it’s a
(sic) isolated incident”; she has a drug problem and is amenable to
treatment; and, she had no prior felonies.

    Florida Rule of Criminal Procedure 3.720(b) requires the court to
entertain submissions and evidence by the parties that are relevant to
sentencing. Failure to comply with this rule is reversible error. Compere
v. State, 44 Fla. L. Weekly D215 (Fla. 4th DCA Jan. 9, 2019) (citing State
v. Munson, 604 So. 2d 1270, 1271 (Fla. 4th DCA 1992)). “Under the
rule . . . defendant[s] are entitled to make a statement to the court, as well
as present matters in mitigation.” Chillingworth v. State, 846 So. 2d 674,
676 (Fla. 4th DCA 2003); see Hodierne v. State, 141 So. 3d 1254, 1255
(Fla. 2d DCA 2014) (remanding for new sentencing “at which Hodierne
shall be permitted to present the entirety of his statement and any other
evidence or submission relevant to the sentence, as provided by rule
3.720(b)”).

   “The rule does not address which submissions or what evidence are
ultimately admissible; it requires only that the sentencing court should
‘entertain’ their proffers.” Gorzynski v. State, 255 So. 3d 990, 993 (Fla. 2d
DCA 2018) (Lucas, J. concurring). Courts have determined that Rule
3.720(b) provides defendants with an opportunity to proffer evidence in
mitigation (which might include the defendant’s own testimony). See
Goldberg v. State, 65 So. 3d 115, 116 (Fla. 3d DCA 2011) (holding that the
defendant was entitled to present rebuttal to the State’s evidence that the
defendant lacked remorse); H.B.T. v. State, 495 So. 2d 919, 920 (Fla. 4th
DCA 1986) (reversing because the trial court refused the defendant’s
request to present the testimony of two police officers to buttress the
defense’s substantial assistance argument as mitigation of sentence
evidence).

    “The fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965)). Due process requires a meaningful opportunity “to be
heard, to testify, and to present evidence”; otherwise, it is fundamental
error. Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014)
(citing Slotnick v. Slotnick, 891 So. 2d 1086, 1089 (Fla. 4th DCA 2004));
see Branton v. State, 187 So. 3d 382, 385 (Fla. 5th DCA 2016) (wholly


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denying defendant’s request to present matters in mitigation is
fundamental error).

   In Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015), we
concluded that the defendant’s right to due process was not violated
because he was given the opportunity to make a sworn statement at
sentencing (during an evidentiary hearing on his motion for downward
departure), but he chose not to do so. Id. at 1242. By contrast, Appellant
here indicated that she sought to present evidence in mitigation through
a sworn statement, but the request was summarily denied. In looking to
the context of Appellant’s request to be placed under oath (particularly the
court’s assertion that it would not grant a withhold absent a showing of
remorse—an issue not previously addressed by Appellant), the trial court’s
outright denial does not meet the rule’s mandatory language that it
“entertain” submissions and evidence relevant to mitigation. This violated
Appellant’s due process rights because she did not have a meaningful
opportunity to be heard on the issues raised by the court and the State.
This was error on the part of the trial court and entails reversal. 2

                                  Conclusion

   Determining an appropriate sentence is “the most important matter
upon which [a court] is called to judge.” Id. Defendants are entitled to
present matters in mitigation pursuant to rule 3.720(b) and the
requirements of due process. Therefore, denying Appellant the requested
opportunity to testify at her sentencing was error. Accordingly, we reverse
Appellant’s sentence and remand for a new sentencing hearing in
compliance with rule 3.720(b).

    Reversed and remanded.

MAY and LEVINE, JJ. concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.


2 The State maintains that Appellant failed to preserve the issue by not offering
an objection subsequent to the trial court’s denying her an opportunity to present
sworn evidence. Appellant contends that the issue was preserved, because the
request to be heard was unambiguously made. We need not address the
preservation issue, as we find that, even if the issue was not preserved for
appellate review, the trial court’s refusal to permit Appellant to present evidence
in mitigation while under oath constituted fundamental error.

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