ALEJANDRO TARRAU v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: May 31, 2023
• Docket: 21-2374
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 31, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2374 Lower Tribunal No. F15-4934 ________________

Alejandro Tarrau, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ramiro C. Areces, Judge.

Carlos J. Martinez, Public Defender and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before SCALES, MILLER and LOBREE, JJ.

PER CURIAM.

Affirmed. Tarrau v. State 3D21-2374 SCALES, J. concurring.

I concur in affirming the revocation of appellant Alejandro Tarrau’s

probation but write only to express my concern regarding the trial court’s

declining to allow Tarrau to sit next to his attorney, at counsel’s table, during

Tarrau’s probation revocation hearing.

At the beginning of Tarrau’s November 4, 2021 probation revocation

evidentiary hearing (at which both Tarrau and his probation officer testified),

Tarrau’s counsel requested that Tarrau be allowed to sit next to counsel to

assist in counsel’s representation of him. Instead, pursuant to what appears

to be a policy of the Florida Department of Corrections (“Corrections”),

Tarrau was seated in the jury box, approximately fifteen feet away from

defense counsel’s table. As evidenced by the following colloquy, it appears

the trial court deferred counsel’s request to Corrections:

THE COURT: Any issue with Mr. Tarrau sitting with his attorneys?

CORRECTIONS SERGEANT: Yes

THE COURT: Okay. What is the issue?

CORRECTIONS SERGEANT: We don’t do that, Judge.

2 THE COURT: Okay.

CORRECTIONS SERGEANT: Only during trials.

THE COURT: Okay. All right.

Ultimately, the trial court found that Tarrau had violated the terms of

his probation and sentenced Tarrau to twenty-two years in prison followed

by one year of community control. In this appeal, Tarrau challenges neither

the trial court’s probation violation finding nor the resulting sentence. Rather,

Tarrau argues that the proceedings were structurally infirm 1 because the trial

court, by denying Tarrau’s counsel’s seating request, denied Tarrau the

effective assistance of counsel. Because Tarrau cites to no authority

supporting his constitutional deprivation of counsel claim in these

circumstances, I agree with affirmance. See United States v. Tagilaferro, 531

F. Supp. 3d 844, 852 (S.D. N.Y. 2021) (finding that the district court’s social

distancing requirement, which prohibited defendant from being seated at

counsel’s table, was not a violation of defendant’s Sixth Amendment right to

communicate with counsel).

1 A structural error is an error that affects the framework within which a criminal trial proceeds. A structural error is a defect in the trial process itself, which deprives a defendant of a basic protection and is not susceptible to a harmless error analysis. Neder v. United States, 527 U.S. 1, 8-9 (1999).

3 But as this Court clearly stated in Gonzalez v. State, 343 So. 3d 166,

171 (Fla. 3d DCA 2022), and, as the State commendably conceded at oral

argument, “in most settings and under most circumstances, it is probably

optimal to have counsel sitting next to the defendant at the same table.”

While there are circumstances that may warrant a variance from the optimal

seating arrangement described in Gonzalez, 2 in my view, it is incumbent

upon the trial court to identify those circumstances that justify precluding a

client from sitting next to his or her attorney during an evidentiary hearing.

See United States v. Sorrentino, 726 F.2d 876,887 (1st Cir. 1984) (holding

that the trial court should articulate a reason, such as security or practicality,

for separating a defendant from counsel’s table, though finding “no evidence

that the [separate] seating arrangement prevented or unduly hindered

communication between defendant and his counsel”).

2 For example, the practicalities of a small courtroom and security concerns led the First Circuit Court of Appeals to uphold a trial court’s decision to seat criminal defendants in the spectator section of the courtroom rather than at counsel’s table. United States v. Balsam, 203 F.3d 72, 81-82 (1st Cir. 2000). Similarly, the health and safety concerns of the COVID-19 pandemic have given rise to remote hearings with sufficient procedural safeguards in which counsel and client were not seated next to each other but, instead, were connected by a videoconferencing platform. See, e.g., Brown v. State, 335 So. 3d 123, 130 (Fla. 4th DCA 2022); Gonzalez, 343 So. 3d at 170-71.

4 Put another way, the default seating arrangement for an evidentiary

hearing should be the one Gonzalez describes as optimal, and the decision

to deviate from this default position should be that of the trial court, after due

consideration and articulation of those reasonable factors warranting such

deviation.