NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

AARON RAMON SHAW,                )
                                 )
           Appellant,            )
                                 )
v.                               )                   Case No. 2D17-4664
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed September 11, 2020.

Appeal from the Circuit Court for DeSoto
County; Don T. Hall, Judge.

Howard L. Dimmig, II, Public Defender,
and Matthew D. Bernstein, Assistant
Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa,
for Appellee.


NORTHCUTT, Judge.

             A jury convicted Aaron Shaw of one count of battery on a Florida Civil

Commitment Center staff member. Shaw's trial was tainted by a trial court order

requiring Shaw to either wear a stun belt or leave the courtroom. We therefore reverse

Shaw's conviction and remand for a new trial.
             Shaw's trial began with his objection to the trial court's pretrial ruling that

he would be required to wear a stun belt in the courtroom. Shaw complained that he

has mental and emotional issues that can be exacerbated by wearing a stun belt.

Based on past experience, he feared that wearing the device would be a trigger that

would cause him to act out in the courtroom, disrupt the proceedings, and lead to his

being stunned. He urged the court in lieu of his wearing a stun belt to post a deputy

near him to alleviate any concern the court might have.1



             1At  trial, the State did not contest Shaw's claim that he suffers from
schizophrenia and antisocial disorder, and it has expressly acknowledged the latter
diagnosis in its answer brief. Shaw pleaded with the court:

             Well, the problem is, Judge I'm schizophrenic, right? And I
             got -- I showed her the record. I got the paperwork, right?
             And I have a -- it triggers me. Every courtroom I've been in
             them, I had psychiatrists -- I didn't bring the transcripts from
             that, but they told the judges this is a trigger for Mr. Shaw.
             Mr. Shaw can behave himself, he's not going to act out
             inappropriate, but if you put this belt on him -- any kind of
             stimuli, you put the stimuli on him and, you know, it steers
             the fear and then -- which elevates me, you know, creates
             me to, you know -- to -- to do inappropriate stuff.

                     So I don't -- in order for me to be conscious and
             appropriate and assistant, and behavior, you know, it's not to
             have all these interferences; okay? I've never -- I've always
             given you my word, Judge. If I tell you this not going to be a
             problem, I'm not going act out, I'm not going to try to swing
             on anybody, I'm not going to get upset in the courtroom and
             do something stupid, you know? But these stimuli, it's just
             like a person being afraid of heights, you know? A person
             being afraid to swim in water. I'm afraid of what -- the
             thought, you know, just thought itself triggers me.

                   And I just got finished speaking to your deputies and I
             was telling them that in the past what they have done is
             provided -- if they was able to, extra security or whatever or
             put somebody by me or whatever, if they had a problem.
             Everything always went -- went without incident, no problem,


                                            -2-
              Unpersuaded, the trial court told Shaw that he could either sit in the

courtroom wearing the stun belt or sit outside the courtroom, listen to the trial through

an earpiece, and have his counsel come out and talk with him between witnesses.

Shaw chose the latter option and confirmed for the court that he was waiving his

appearance: "Due to the belt, yes, because it's a trigger for me, it's a trigger. So it's

going to create a disruption in the Court, you know? I'm not going to cause that on

myself or anybody else. I can't wear that belt."

              Shaw was absent for all of jury selection, opening statements, and the

testimony of the first seven witnesses, including several eyewitnesses to the alleged

battery. He returned to the courtroom for the State's last witness, the victim in the case.

There was no discussion on the record describing why he decided to return or indicating

whether he was wearing the stun belt. The court merely stated, "For the record, Mr.

Shaw is present in the courtroom now." Shaw attended what remained of the trial and

testified in his defense without incident or further discussion of the stun belt. He was

convicted as charged and sentenced to five years in prison.

              The trial court's unelaborated order requiring Shaw to wear a stun belt was

error. A defendant has the right to be free of physical restraints, such as shackles and

so forth, when in the presence of the jury. Weaver v. State, 

, 193 (Fla.

2004). The right is not absolute, and "[r]estraints 'may be necessary to prevent the



              even in the jail. The jail over there, I never had incident. No
              incident of violence or anything, you know?

                        So it's just stimuli. I just show[ed] her my paperwork.
              I left it on the bench in there where it shows that I -- that I do
              have these issues, you know?



                                             -3-
defendant from disrupting the trial . . . and to protect the physical well-being of the jury,

lawyers, judge, and other trial participants.' "

State, 

, 390 (Fla. 2002)). The use of restraints is within the discretion of the trial court

court] has made the requisite findings that such shackles are

necessary." Hernandez v. State, 

, 658 (Fla. 2009) (emphasis added). The

principles governing the use of physical restraints at trial apply as well to the use of stun

belts. 

.

              Here, the trial court made no finding that could have justified requiring

Shaw to wear a stun belt in the presence of the jury. At the beginning of the trial there

was a protracted discussion of the stun belt, but that exchange focused on Shaw's

opposition to wearing the belt and his explanation for his reluctance to do so. Although

the court expressed its desire "to enforce the security measures in the courtroom,"

neither the State nor the court expounded on the need for the belt specifically in Shaw's

case, e.g., whether Shaw's history included violent convictions, violent outbursts,

courtroom disruptions, or the like. Cf. Miller v. State, 

, 905 (Fla. 4th DCA

2003) (holding that restraints were unjustified when "[n]othing in the record indicate[d]

that [the defendant] had any courtroom outbursts or otherwise demonstrated a potential

escape or injury risk while in court").

              Moreover, Shaw's prior convictions (for sexual battery, kidnapping, and

battery on a law enforcement officer) would not in themselves have been enough to

warrant the use of restraints without additional evidence of prior courtroom disruptions,

a genuine threat to public safety, or a risk of escape. See

armed robbery convictions, the most recent in 1985, are not sufficient alone to




                                             -4-
necessitate the extreme restraint measures that were used here [(handcuffs, a waist

chain, leg irons, and a stun belt)]."); see also Smith v. State, 

, 1088 (Fla.

2d DCA 2010) (differentiating between disruptive behavior outside the courtroom and

disruptive behavior inside the courtroom, the former of which does not necessarily

justify the use of restraints).

               In most cases involving physical restraints, the attendant prejudice lies in

the jury's awareness that the defendant is restrained. See 

("Allowing a defendant to appear before the jury in restraint devices is an inherently

prejudicial practice that undermines the presumption of innocence and the right to a fair

trial."). But in this case the record does not reflect whether the jury was aware that

Shaw was absent because he would not wear the stun belt, nor can we discern whether

the jury might have been aware that he was wearing the belt when he eventually

appeared late in the trial, if he was indeed wearing one at that point. If either of those

occurred, of course, Shaw would be entitled to a new trial on that basis alone.

               Either way, however, it is certain that the trial court's unsupported

insistence that Shaw wear a stun belt effectively deprived him of his right to be present

during most of his trial. We reject the State's argument that Shaw's nonattendance was

voluntary and that he waived his right to be present. Manifestly, under the

circumstances of this case Shaw's absence was not truly voluntary. See generally

Turner v. State, 

, 49 (Fla. 1987) ("A defendant's waiver of the right to be

present at essential stages of trial must be knowing, intelligent and voluntary." (citing

Amazon v. State, 

(Fla. 1986))).




                                             -5-
              Unsurprisingly, we have not found any case law addressing voluntariness

in this unique circumstance. This is not the typical situation in which a defendant

attempts to evade capture or to frustrate the judicial process by fleeing or otherwise

refusing to attend trial. See, e.g., Capuzzo v. State, 

, 440 (Fla. 1992)

(fleeing); Dufour v. State, 

, 161 (Fla. 1986) (hunger-strike-induced

hospitalization). Rather, the trial court forced Shaw to elect either to abandon his right

to attend his trial or to comply with an unjustified order that he wear a restraint that likely

would disrupt the proceedings and severely prejudice him before the jury. It is

impossible to conclude that Shaw voluntarily absented himself or that he willingly

waived his Sixth Amendment right to be present for his trial.

              The question remains whether this violation of that right was harmless.

                     A violation of the right to be present is subject to a
              harmless error analysis. See Smithers v. State, 

, 927 (Fla. 2002). "In other words, when the defendant is
              involuntarily absent during a crucial stage of adversary
              proceedings contrary to rule 3.180(a), the burden is on the
              state to show beyond a reasonable doubt that the error
              (absence) was not prejudicial." Garcia v. State, 

, 364 (Fla. 1986). "[W]hile rule 3.180(a) determines that
              the involuntary absence of the defendant is error in certain
              enumerated circumstances, it is the constitutional question
              of whether fundamental fairness has been thwarted which
              determines whether the error is reversible."

we have found harmless error where the
              defendant suffered no prejudice from his absence, "the
              defendant would not have been able to assist his counsel in
              opposing adverse rulings," or "no adverse rulings were made
              outside the defendant's presence." Ault v. State, 

, 202 (Fla. 2010) (citing Pomeranz v. State, 

, 471 (Fla. 1997); Roberts v. State, 

, 890–
              91 (Fla. 1987); 

).

Jordan v. State, 

, 338–39 (Fla. 2014).




                                             -6-
              The State contends that Shaw's absence from the trial was harmless

because he received constructive notice of the proceedings through his counsel's

presence in the courtroom. We find this argument unpersuasive.

              Constructive notice of trial proceedings may be imputed to a defendant

"when a defendant is absent from a portion of his trial, where he knew or should have

known of the proceedings, . . . when he is represented by counsel to whom he has not

objected, and when his counsel waives objection to the defendant's absence." State v.

Melendez, 

, 139 (Fla. 1971). But this principle is "limited to those cases

in which the defendant, upon his reappearance at his trial, acquiesces in or ratifies the

actions taken by his counsel during his absence."

of this kind may

be found only when, upon the defendant's return, he "freely and willingly, knowingly and

with understanding, waives objection to and ratifies the actions taken by his counsel."

This does not mean "that a defendant's absence due to lack of notice or

which is otherwise involuntary can be subsequently cured by defendant's silent

acquiescence in continuation of his trial, without a showing of actual or constructive

knowledge."

Shaw never in any way ratified anything that occurred at his

trial when he was outside the courtroom. He merely reappeared; whereupon the trial

continued without any comment from Shaw, without any discussion of the proceedings

that occurred in his absence, and without any indication that Shaw even knew what had

transpired. To the contrary, at one point after defense counsel returned to the

courtroom after consulting with Shaw, he reported that Shaw was not even wearing the

earpiece that would have enabled him to listen to the trial. At most, this was merely a




                                           -7-
"silent acquiescence in continuation of his trial."

Thus, Shaw's involuntary

absence from his trial was not cured or waived by the presence of his attorney and his

mere failure to object upon returning. The error here was not harmless.

              We reverse Shaw's conviction and remand for a new trial. Should the trial

court believe, in its discretion, that special restraints such as the stun belt are justified at

Shaw's retrial, it must make express and specific findings on the record explaining that

decision.

              Reversed and remanded.



LaROSE and SMITH, JJ., Concur.




                                              -8-