Saturday, August 1, 2015

A Criminal Defendant's Right of Allocution at Sentencing

Hon. William H. Burgess, III, B.C.S.

In Florida, a criminal defendant prior to sentencing has the opportunity to make an unsworn statement without restraint to the sentencing judge in allocution.  The opportunity of the defendant to allocute gives the defendant a chance to express to the sentencing judge any additional information that will aid the court in making a sound and reasoned judgment as to the appropriate sentence to be imposed on the convicted defendant.1  Florida Rule of Criminal Procedure 3.720(b) specifically provides that the sentencing court “shall entertain submissions and evidence by the parties that are relevant to the sentence.”2  The language of the rule is mandatory,3 and under this rule, the defendant is entitled to make a statement and present argument to the court.4  The sentencing court cannot deny a defendant an opportunity to make such a statement before sentencing.5 The court cannot impose sentence without letting the defendant read his or her entire prepared statement at the sentencing hearing.6  Note that, while allocation is unsworn and cannot be compelled to be under oath outside the terms of a plea agreement, the court can require the defendant to be under oath if he or she offering testimony to a jury or to the judge on a sentencing departure issue.7


1Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).

2Fla. R. Crim. P. Rule 3.720(b).

3Culbertson v. State, 306 So. 2d 142, 143 (Fla. 2d DCA 1975) (citing Mask v. State, 289 So. 2d 385, 387 (Fla.1973)).

4Davenport v. State, 787 So. 2d 32, 32 (Fla. 2d DCA 2001).

5Ventura v. State, 741 So.2d 1187 (Fla. 2d DCA 1999).

6Hodierne v. State, 141 So. 3d 1254 (Fla. 2d DCA 2014).

7Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).

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