DEMETRY E. FAIN, v. STATE OF FLORIDA

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA DEMETRY E. FAIN, Appellant, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-6608 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed January 24, 2013. An appeal from the Circuit Court for Leon County. James C. Hankinson, Judge. Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM Demetry E. Fain appeals an order revoking probation and sentencing him to fifteen years imprisonment. He argues that the trial court reversibly erred in denying his counsel s request for a closing argument at the end of the evidentiary portion of the hearing. We agree. Appellant was entitled to an opportunity to be heard on the issue of whether he violated his probation. See Pearson v. State, 51 So. 3d 1286, 1286 (Fla. 4th DCA 2011); Estevez v. State, 705 So. 2d 972, 973 (Fla. 3d DCA 1998) (citing Black v. Romano, 471 U.S. 606, 611 (1985)). This opportunity includes the right to a closing argument. Pearson, 51 So. 3d at 1286; Estevez, 705 So. 2d at 973. Because we do not know how a closing argument might have affected the judge s perception of the evidence, we decline the State s invitation to deem the denial of closing argument harmless. Cf. Herring v. New York, 422 U.S. 853, 862-64 (1975) (noting that a closing argument may correct misperceptions in what would otherwise appear to be an open and shut bench trial and that there is no way for a judge to know if a closing argument will have such an effect without allowing the argument to proceed). Accordingly, we REVERSE and REMAND for a new hearing. BENTON, C.J., ROBERTS and RAY, JJ., CONCUR. 2

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