Florida Criminal Law Opinions

M.A.B., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-1367

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

April 27, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:   Appeal from the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, C.J, and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, CANADY, KELLY, VILLANTI, WALLACE, and LaROSE, JJ., Concur. CANADY, J., Concurs with opinion, in which ALTENBERND, WHATLEY, STRINGER, DAVIS, KELLY, and VILLANTI, JJ., Concur. WALLACE, J., Dissents with opinion, in which FULMER, C.J., and LaROSE, J., Concur, and in which NORTHCUTT, J., Concurs in part. LaROSE, J., Dissents with opinion, in which FULMER, C.J., NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur. NORTHCUTT, J., Dissents with opinion. CASANUEVA, J., Dissents with opinion, in which NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

OPINION:   EN BANC

PER CURIAM.

M.A.B. challenges his adjudications of delinquency for grand theft of a motor vehicle and burglary of a conveyance. M.A.  [*2]  B. argues that his postarrest statements should have been suppressed because the Miranda n1 warnings he received failed to inform him of his right to have an attorney present during questioning. M.A.B. also argues that he did not knowingly and voluntarily waive his Miranda rights.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Prior to the issuance of a panel decision, the court on its own motion, pursuant to Florida Rule of Appellate Procedure 9.331(a) and (c), by majority vote ordered en banc consideration with respect to this case on the ground that the case is of exceptional importance. Upon en banc consideration, the court is evenly divided concerning the disposition of the appeal, Judges Altenbernd, Whatley, Stringer, Davis, Kelly, Canady, and Villanti voting to affirm and Judges Fulmer, Northcutt, Casanueva, Salcines, Silberman, Wallace, and LaRose voting to reverse. Pursuant to rule 9.331(a), the adjudications are affirmed.  [*3]

We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) that the following question upon which this decision passes is one of great public importance n2:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n2 In Spence v. Hughes, 500 So. 2d 538 (Fla. 1987), the supreme court considered a certified question of great public importance with respect to a decision of an equally divided court.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -FULMER, C.J, and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, CANADY, KELLY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.
CANADY, J., Concurs with opinion, in which ALTENBERND, WHATLEY, STRINGER,  [*4]  DAVIS, KELLY, and VILLANTI, JJ., Concur.
WALLACE, J., Dissents with opinion, in which FULMER, C.J., and LaROSE, J., Concur, and in which NORTHCUTT, J., Concurs in part.
LaROSE, J., Dissents with opinion, in which FULMER, C.J., NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.
NORTHCUTT, J., Dissents with opinion.
CASANUEVA, J., Dissents with opinion, in which NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

CONCUR BY:   CANADY

CONCUR:   CANADY, Judge, Concurring.

I. Background

At the time of his arrest, M.A.B. was transported to the Tampa Police Department in handcuffs and placed in a holding room. Approximately thirty to forty minutes later, a police detective came into the holding room to question M.A.B. At that time, M.A.B. was read his Miranda rights. At a hearing on M.A.B.’s motion to suppress, the detective who read the Miranda rights and participated in questioning M.A.B. testified that he read the warnings from a standard form. According to the detective’s testimony, M.A.B. was advised:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before  [*5]  answering . . . any of our questions. If you cannot afford to hire a lawyer, one will [be] appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

(Emphasis added.) The detective testified that M.A.B. stated he understood his rights. M.A.B. also signed a waiver of rights form which sets forth the Miranda warnings in the same manner as the oral warnings described in the detective’s testimony. The written waiver form contains an express acknowledgment by M.A.B. that he understood his rights as well as a statement that he was “willing to talk” to the police. The interrogation, which was not recorded and lasted about ten minutes, resulted in M.A.B.’s admitting that he committed the crimes for which he was subsequently adjudicated.

The detective testified that he did not remember asking M.A.B.’s age, though he believed he was probably fifteen or sixteen. (It is undisputed that on the day of his confession, M.A.B. was within a few days of being 15 1/2 years of age.) The detective also testified that he did not know M.A.B.’s experience, background, school grade level,  [*6]  or intelligence or if M.A.B. had prior contact with law enforcement. The detective did testify, however, that M.A.B. appeared mature for his age. He further testified that he made no promises to M.A.B.

According to the testimony of another officer who participated in interrogating M.A.B. after the Miranda rights had been read to him, M.A.B. never expressed any desire for a parent or guardian to be present and the officer did not remember attempting to contact M.A.B.’s parents. The officer testified that although the department’s standard operating procedure was to contact a parent before questioning or to have a parent present at questioning, the procedure was merely preferred and not required. The officer testified that at some point M.A.B. did contact his mother, but the officer could not remember whether this occurred prior to or after the interrogation.

The officer also testified that no threats or promises were made during his interrogation of M.A.B. and that M.A.B. did not appear to be under the influence of drugs or alcohol. The officer further testified that M.A.B. appeared to understand the questions posed to him during the interrogation.

There is no suggestion in the  [*7]  record that M.A.B. was subjected to any cajolery or trickery.

In his motion to suppress, M.A.B. contended that “he was not properly advised of his right to consult with an attorney during questioning or of his right to stop the questioning at any time.” He also asserted that “the State cannot prove by a preponderance of the evidence that the statements [he] made to law enforcement . . . were knowingly, voluntarily[,] and intelligently made.” At the hearing on the motion to suppress, the defense focused on factors relevant to the validity of M.A.B.’s waiver of Miranda rights. n3

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n3 Before the trial court, M.A.B. also contended that his confession should be suppressed because his detention and arrest were illegal. That argument has, however, not been raised in this appeal.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The trial court first determined that the Miranda warnings were adequate to inform M.A.B. of his rights. Regarding the validity of M.A.B.’s waiver of his Miranda rights, the trial court’s oral ruling included findings (1)  [*8]  that “[t]he defendant appeared mature for his age,” (2) that the defendant “did not appear to be under the influence of any alcohol or drugs,” and (3) that the defendant “appeared to understand questions that were being asked to him in the interview.”

The trial court also noted that there was no evidence concerning M.A.B.’s intelligence and educational background or whether M.A.B. had prior experience with law enforcement. n4 The findings of the trial court also included this statement: “[T]he court would note that the manner in which the Miranda rights were administered to [M.A.B.] were sufficient and did involve any [sic] cajoling or trickery.” (Emphasis added.) It is apparent from the whole context that the trial court intended to find that the administration of Miranda rights “did [not] involve any cajoling or trickery.” The trial court determined-based on the totality of the circumstances-that M.A.B. voluntarily, knowingly, and intelligently waived his Miranda rights.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n4 Although there was no testimony at the motion hearing concerning M.A.B.’s prior experience with law enforcement, it is apparent that he had quite substantial experience with the juvenile justice system. The record shows that upon his arrest on the charges at issue here, the trial court entered a detention order based in part on the court’s determination that M.A.B. was “an escapee or absconder from Commitment/Probation Detention” and had violated a court order entered the previous month. The record before the trial court further shows that previously M.A.B. had been repeatedly adjudicated delinquent and repeatedly subjected to the supervision or custody of the Department of Juvenile Justice.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*9]

Ultimately, M.A.B. was adjudicated delinquent on both charges. This appeal followed.

II. Analysis

First, I will address M.A.B.’s argument on appeal that the Miranda warnings given by the police were defective because they did not contain express advice concerning the right to the presence of counsel during questioning. Second, I will turn to the argument that M.A.B.’s waiver was invalid because the State failed to establish that it was knowing and voluntary. In reviewing both issues, “a presumption of correctness [is accorded] to the trial court’s rulings” concerning the “determination of historical facts”; however, “the determination of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling is subject to de novo review.” Connor v. State, 803 So. 2d 598, 608 (Fla. 2001).

A. The Adequacy of the Miranda Warnings

In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the Supreme Court held that prior to custodial interrogation, law enforcement officers must inform a suspect of certain rights in order to protect the suspect’s Fifth Amendment privilege against self-incrimination  [*10]  from the pressures associated with in-custody interrogations.

[The suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 479. The Supreme Court described the right to have counsel present during interrogation as “indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” Id. at 469.

1. The General Scope of Miranda’s Requirements: No Talismanic Incantation

The Supreme Court in Miranda specifically recognized, however, that the requirement to inform a suspect of his rights could be satisfied not only by the precise warnings delineated but also by “a fully effective equivalent”: “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.  [*11]  ” Id. at 476 (emphasis added).

In California v. Prysock, 453 U.S. 355, 359, 69 L. Ed. 2d 696 (1981), the Court, pointing to the reference in Miranda to “a fully effective equivalent,” stated that “Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.” The Prysock Court rejected any suggestion of a “desirable rigidity in the form of the required warnings.” Id. Specifically, the Court rejected the view that advice concerning the availability of appointed counsel was inadequate because the defendant “was not explicitly informed of his right to have an attorney appointed before further questioning.” Id. See also Duckworth v. Eagan, 492 U.S. 195, 203, 106 L. Ed. 2d 166 (1989) (“Reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’” (alteration in original) (quoting Prysock, 453 U.S. at 361)).

2. Advice of the Right to Counsel Without Express Mention of the Presence of  [*12]  Counsel

In Miranda itself, the Supreme Court recognized the adequacy of a particular warning that did not expressly advise a suspect of the right to the presence of counsel during questioning. The Court discussed at length the FBI’s practice of advising suspects of their constitutional rights and explicitly recognized the sufficiency of the FBI’s practice. Quoting from a letter provided by the solicitor general, the Court set forth the practice followed by the FBI: “‘The standard warning long given by Special Agents of the FBI . . . is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court.’” 384 U.S. at 484 (emphasis added). The long-given warning had recently been augmented by reference to the “‘right to free counsel’” as well as a “‘broaden[ing] [of] the right to counsel warning to read counsel of [the defendant's] own choice.’” Id. at 484-85.

The Court observed that “[t]he practice of the FBI can readily be emulated by state and local enforcement agencies.” Id. at 486. And the Court stated unequivocally that “the present pattern of  [*13]  warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today.” Id. at 483-84 (emphasis added). Strikingly, any express reference to the right to the presence of counsel is absent from the FBI’s standard warnings, which the Miranda Court found to be consistent with the requirements imposed by its decision.

This aspect of Miranda was recently discussed by the Fifth Circuit in Bridgers v. Dretke, 431 F.3d 853 (5th Cir. 2005). Although the court had previously held that Miranda requires that a defendant be expressly advised of the right to the presence of counsel during questioning, see Atwell v. United States, 398 F.2d 507, 510 (5th Cir. 1968), in Bridgers it acknowledged “the Supreme Court’s endorsement [in Miranda] of the FBI warnings that did not expressly state there is a right to counsel during interrogation,” Bridgers, 431 F.3d at 860. The Bridgers court observed that it is “not clear from the [Miranda] majority opinion . . . whether informing the suspect that he has a right to the presence of  [*14]  an attorney prior to questioning adequately conveys that counsel may remain during questioning.” Id. at 859. The court, which was considering a denial of habeas relief from a state court judgment, went on, however, to hold that the state appellate court’s decision upholding such a warning did not involve “an objectively unreasonable application of Supreme Court precedent.” Id. at 860 n.6.

In United States v. Lamia, 429 F.2d 373, 374-75 (2d Cir. 1970), the court considered the sufficiency of warnings in which the defendant, after being informed “that ‘he need not make any statement to [the FBI agents] at [this] time, [was told that] . . . he had a right to an attorney, [and that] if he wasn’t able to afford an attorney, an attorney would be appointed by the court.’” After concluding that the warnings were adequate to inform the defendant of his right to remain silent, the court addressed the defendant’s argument that the warnings “did not apprise him that he had the right to the ‘presence’ of an attorney during questioning.” Id. at 376. Rejecting the defendant’s argument, the court stated: “Viewing this statement  [*15]  in context, Lamia having just been informed that he did not have to make any statement to the agents . . ., Lamia was effectively warned that he need not make any statement until he had the advice of an attorney.” Id. at 377. In concluding that the warnings were adequate despite the absence of an express statement that counsel could be present during questioning, the court observed that Lamia “was told nothing that would suggest any restriction on the attorney’s functioning.” Id.

The decision in Lamia has been cited by the Supreme Court. In rejecting the view that Miranda requires a “talismanic incantation,” the Supreme Court in Prysock observed: “This Court has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant.” 453 U.S. at 359. As support for that proposition, the Supreme Court cited Lamia. The Supreme Court’s citation of Lamia strongly suggests the Supreme Court’s approval of that decision. In United States v. Burns, 684 F.2d 1066, 1074-75 (2d Cir. 1982), the court noted the citation to Lamia in Prysock, expressed its continued  [*16]  adherence to Lamia, and upheld warnings which–like the warnings in Lamia–did not expressly state the right to the presence of counsel during questioning.

An approach similar to that followed by the Second Circuit in Lamia and Burns was adopted by the Fourth Circuit in United States v. Frankson, 83 F.3d 79, 81 (4th Cir. 1996), where the defendant argued that the warning given to him “was not specific enough to satisfy the requirements set forth in Miranda.” The defendant had been advised of his “right to remain silent,” his “right to an attorney,” and his right to the appointment of a lawyer if he could not afford one. Id. The officer giving the warnings “also told [the defendant] that while he was talking to [the officer], he was free to stop talking to [the officer] at any time.” Id. Rejecting the contention that the warnings were insufficient “for not specifically mentioning that the right to an attorney applies both ‘prior to interrogation’ and ‘during the interrogation,’ ” the court held that the warnings “communicated to [the defendant] that his right to an attorney began immediately and continued forward in time without  [*17]  qualification.” Id. at 82. The court reasoned that the advice to the defendant that he had “the right to an attorney” would necessarily be understood to comprehend the specific right to the presence of counsel before and during questioning: “Given the common sense understanding that an unqualified statement lacks qualifications, all that police officers need do is convey the general rights enumerated in Miranda.” Id.

Other courts have also upheld the validity of warnings advising of the right to an attorney without an express statement concerning the right to the presence of counsel during questioning. See United States v. Caldwell, 954 F.2d 496, 504 (8th Cir. 1992) (stating that “the general warning that [the defendant] had the right to an attorney, which immediately followed the warning that he had the right to remain silent, could not have misled [the defendant] into believing that an attorney could not be present during questioning”); United States v. Adams, 484 F.2d 357, 361-62 (7th Cir. 1973) (relying in part on Lamia); Eubanks v. State, 240 Ga. 166, 240 S.E.2d 54, 55 (Ga. 1977) (holding that  [*18]  where defendant was advised of right to remain silent and “that he had a right to any attorney,” warnings were sufficient because it was “implicit in this instruction that if the suspect desired an attorney the interrogation would cease until an attorney was present”); Criswell v. State, 84 Nev. 459, 443 P.2d 552, 554 (Nev. 1968) (“While the [advice that the defendant had a right to counsel] did not specifically advise the [defendant] that he was entitled to have an attorney present at that moment and during all stages of interrogation, no other reasonable inference could be drawn from the warnings as given.”) disapproved of on other grounds by Finger v. State, 117 Nev. 548, 27 P.3d 66 (Nev. 2001); State v. Quinn, 112 Ore. App. 608, 831 P.2d 48, 52 (Or. Ct. App. 1992) (holding that advice to defendant that he had “the right to an attorney” and to the appointment of an attorney if he could not afford one “did not suggest any limitation on his right to have counsel present during interrogation, or that the appointment of counsel was conditioned on a future event”).

Some courts have rejected the reasoning underlying Lamia and  [*19]  other cases that have upheld a warning of a right to counsel without express mention of the right to the presence of counsel during questioning. For example, in two recent cases, the Fifth District has ruled that general advice concerning the right to an attorney is insufficient.

In Maxwell v. State, 917 So. 2d 404, 407-08 (Fla. 5th DCA 2006), the court rejected the State’s argument that advising the defendant that “he ‘had a right to an attorney’” implicitly informed the defendant both that “he had the right to have the attorney present during questioning and that one would be appointed in the event he could not afford to hire one.” Maxwell involved a circumstance–the failure to mention the right to appointment of counsel–which sets it apart from Lamia and similar cases. Nonetheless, Maxwell appears to hold that the failure to expressly inform the defendant of the right to the presence of counsel during questioning in itself rendered the warnings invalid.

In Octave v. State, 925 So. 2d 1128 (Fla. 5th DCA 2006), the court identified the sole deficiency in the warnings as the failure to advise of the right to the presence of a lawyer  [*20]  during questioning. The court stated that “the officers only explained to [the defendant] that she had a right to counsel, generally, and never said anything that could fairly be understood as apprising [the defendant] of her right to have a lawyer present during questioning.” Id. at 1129. Citing Maxwell, the Octave court concluded that reversal was “clearly required.” Id.

Other decisions are in accord with the approach taken by the Fifth District. See United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992) (holding that warnings containing advice that defendant had “the right to the presence of an attorney” were insufficient because they “failed to convey to defendant that he had the right to an attorney both before, during[,] and after questioning”); Montoya v. United States, 392 F.2d 731, 732 (5th Cir. 1968) (holding that warnings containing advice that defendant “had a right to an attorney” were insufficient because they failed to inform defendant of the right to the presence of counsel during interrogation).

In light of the principles articulated in Prysock and of Miranda’s approval of the FBI warning,  [*21]  I find the reasoning of Lamia and like cases more persuasive than the reasoning of the cases that are to the contrary. And I conclude that the reasoning of Lamia and similar cases upholding the sufficiency of warnings advising of the right to an attorney provides support for the conclusion that the advice to M.A.B. concerning the “right to talk to a lawyer” is consistent with the requirements of Miranda. In relying on the reasoning of Lamia and like cases, I reject any suggestion that there is a significant difference between informing a defendant of the “right to a lawyer” and advising him of the “right to talk to a lawyer.” The essence of the right to counsel is the right to talk with counsel. All the advantages obtained by a criminal suspect who is represented by a lawyer flow from the core activity of talking with the lawyer. Accordingly, there is no material distinction between advising a suspect of his “right to a lawyer” and advising him of his “right to talk to a lawyer.” Indeed, the advisement of a “right to talk with a lawyer” may be the most direct and immediately comprehensible way of explaining the right to counsel.

3. Advice Concerning the Right  [*22]  to Have Counsel Before Questioning

The Supreme Court of California addressed a related fact pattern in People v. Wash, 6 Cal. 4th 215, 861 P.2d 1107, 1118 (Cal. 1993), where the defendant challenged the sufficiency of warnings which contained the statement that “you have the right to have an attorney present before any questioning.” n5 (Emphasis added.) The defendant argued that this language was insufficient because it “failed to inform him that he was entitled to counsel during questioning.” Id. (emphasis added). The court concluded, however, that the reference to access to counsel before questioning could not reasonably be understood as implying that access to counsel would be terminated once questioning began: “[W]e are not persuaded-as defendant’s argument implies-that the language [of the warnings] was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began.” Id. at 1118-19. On this point, I find the reasoning of Wash persuasive.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n5 The fact pattern in Wash is similar to the fact pattern in Bridgers.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*23]

In Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004), the Fourth District addressed the sufficiency of warnings similar to the warnings at issue in Wash and reached a different conclusion than Wash. The Roberts court held that advising a suspect of “the right to talk with a lawyer and have a lawyer present before any questioning,” id. at 1226 (emphasis supplied), was inadequate because it “fail[ed] to inform [the suspect] that he had a right to have counsel present during interrogation,” id. at 1228 (emphasis supplied). See also State v. Weiss, 935 So. 2d 110 (Fla. 4th DCA 2006); West v. State, 876 So. 2d 614 (Fla. 4th DCA 2004).

The rule adopted by the Fourth District in Roberts is in accord with decisions from some other courts. See United States v. Noti, 731 F.2d 610, 614 (9th Cir. 1984) (holding that warnings which advised defendant of “the right to the services of an attorney before questioning” were inadequate); Windsor v. United States, 389 F.2d 530, 533 (5th Cir. 1968) (“Merely telling [a defendant] that he could speak with  [*24]  an attorney . . . before he said anything at all is not the same as informing him that he is entitled to the presence of an attorney during interrogation . . . .”). But other cases have employed reasoning similar to that of the Wash court to uphold warnings referring to the right to consult with an attorney before questioning. See United States v. Vanterpool, 394 F.2d 697, 699 (2d Cir. 1968) (upholding validity of warnings where defendant was advised “he had a right ‘to consult with a lawyer at this time’”); United States v. Anderson, 394 F.2d 743, 746-47 (2d Cir. 1968) (upholding validity of warnings where prior to interrogation defendant was advised “that he had a right to an attorney present at that time”); State v. Arnold, 9 Ore. App. 451, 496 P.2d 919, 922, 923 (Or. Ct. App. 1972) (holding that where the defendant was advised that “‘he had the right to consult with an attorney prior to any questioning’” and the defendant “did not request an attorney on that advice,” warnings were sufficient because it was “reasonable to assume . . . that [the defendant] would not have requested the [p]resence of an attorney while he answered  [*25]  the police officer’s questions”).

4. The Distinctive Aspect of the Warnings Given to M.A.B.

The final sentence of the warnings given to M.A.B. makes this case distinguishable from both the cases which have concluded that a general statement concerning the “right to an attorney” is insufficient and the cases which have held that a statement of the right to consult with counsel before questioning or to have counsel present before questioning is inadequate. The warnings given to M.A.B. make clear that the right to consult with counsel could be exercised not only “before answering . . . any . . . questions” but also “at any time . . . during” interrogation. By specifically referring to the right to consult with counsel both before questioning and at any time during questioning, the advice given to M.A.B. is more detailed than the simple advice of the right to an attorney. And by the reference to the right to consult with counsel at any time, the advice given to M.A.B. avoids the implication–unreasonable as it may be–that advice concerning the right of access to counsel before questioning conveys the message that access to counsel is foreclosed during questioning.  [*26]

There is nothing confusing or contradictory in the portion of the warnings that advised M.A.B. of the “right to use” any of the rights of which he had been informed “at any time” he wanted during interrogation. This portion of the warnings clearly informed M.A.B. that he could at any time during interrogation avail himself of the right to remain silent, the right to talk to a lawyer, and the right to appointment of counsel. It is not reasonably susceptible to any other interpretation. n6 But see Atwell, 398 F.2d at 510 (“The advice that the accused was entitled to consult with an attorney . . . ‘at anytime’ does not comply with Miranda’s [requirements].”).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n6 Judge Wallace’s dissent concludes that because the warnings first advised of the “right to talk to a lawyer before answering questions,” the subsequent advice of the “right to use any of these rights at any time” was “confusing and contradictory.” In the dissent’s view, there is a fatal confusion and contradiction arising from the juxtaposition of the before phrase and the at any time phrase in the warnings. With all due respect, this understanding of the warnings is not reasonable.

No basis for finding confusion or contradiction arises from a warning that first advises a suspect that he has a right to counsel before interrogation can proceed and then, two sentences later, advises that the right to counsel can be invoked at any time. There is a natural and logical progression from the before phrase of the warning to the at any time phrase–a progression from advising the suspect that he may invoke his right to counsel immediately to further advising him that he also can invoke the right to counsel after interrogation has begun.

To accept the dissenting view on this point requires the belief that a suspect, when hearing the final sentence of the warnings, would conclude that the reference to rights which can be used at any time could not include the right to counsel and that he would reach that conclusion because he had just been advised of his right to counsel before questioning. “You said I have the right to counsel before questioning. You can’t now be telling me that I can invoke that same right subsequently.” Such a response to the warnings given to M.A.B. would be unreasonable because it would ignore the plain import of the words in their context.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*27]

The warnings given to M.A.B. are similar in significant respects to the admittedly more explicit warnings that were recently upheld by the Fourth District in Canete v. State, 921 So. 2d 687 (Fla. 4th DCA 2006). The defendant in Canete was informed: “You have the right to speak to an attorney, have an attorney present here before we make any questions.” Id. at 688. The defendant was further informed by the police that if he could not afford an attorney, “one will be appointed before we can . . . ask you any questions.” Id. In addition, the warnings at issue in Canete stated: “If you decide to answer the questions now, without an attorney present, you still have the right not to answer my questions at any time until you can speak with an attorney.” Id.

The Canete court held “that the language used by the officer in advising Canete is the functional equivalent of that required in Miranda” even though Canete was not expressly told that he had the right to have an attorney present during questioning. Id. The court noted that the defendant was told “that he had the right to the presence of an attorney before [the interrogating  [*28]  officers] could ask him any questions” and that he was asked “if he was willing to answer questions without an attorney present.” Id. at 689. The court reasoned that “[t]he totality of the warning given . . . was sufficient for Canete to readily infer that he had a right to have an attorney present ‘during’ interrogation.” Id. at 688. See also Bramwell v. State, 929 So. 2d 1096 (Fla. 4th DCA 2006) (relying on Canete).

Unlike the warnings given to M.A.B., the warnings in Canete did make explicit reference to the presence of an attorney. But neither the warnings given in Canete nor the warnings given in this case expressly stated that the defendant had a right to the presence of counsel during questioning. Despite the absence of such an express statement, both warnings can only reasonably be understood as conveying the message that counsel could be present during questioning. Only based on a strained, literalistic reading–a reading that is inattentive to context–could the Canete warnings be interpreted as implying that the defendant could have access to a lawyer before questioning and if the defendant stopped  [*29]  questioning but not during questioning. Similarly, only based on a strained, literalistic reading could the warnings given to M.A.B. be interpreted as implying that M.A.B. could talk to a lawyer before questioning and at any time during questioning but could not have a lawyer present during questioning.

5. The Adequacy of the Warnings Given to M.A.B.

The warnings at issue in this case admittedly are not the most elegant formulation of Miranda rights. But the test is reasonable clarity, not elegance. And the language of the warnings meets the test of reasonable clarity. The statement of Miranda rights given to M.A.B. suggests neither that the right of access to counsel is limited to a lawyer who is not physically present nor that the right to counsel is inapplicable during interrogation.

Particularly when viewed in the context of the final sentence of the warnings, nothing in the warnings can be understood to place any limitations on the circumstances of access to counsel. M.A.B. “was told nothing that would suggest any restriction on the attorney’s functioning.” Lamia, 429 F.2d at 377. “[T]he general warning that [M.A.B.] had the right to [talk  [*30]  with] an attorney, which immediately followed the warning that he had the right to remain silent, could not have misled [M.A.B.] into believing that an attorney could not be present during questioning.” Caldwell, 954 F.2d at 504. An implication that the right to talk with counsel did not include the right to talk with counsel with counsel present can be drawn out of the warning only by ignoring the plain import of the words used. Such an interpretation requires that the “right to talk with a lawyer” be transmogrified into the “right to talk with a lawyer–but only by phone.” Such an interpretation ignores “the common sense understanding that an unqualified statement lacks qualifications.” Frankson, 83 F.3d at 82.

In summary, because I conclude that the warnings given to M.A.B. cannot reasonably be understood as suggesting that M.A.B. was not entitled to have a lawyer present during interrogation, I reject M.A.B.’s argument that the warnings were insufficient. When considered as a whole, the warnings clearly informed M.A.B. of his continuing right of access to counsel.

B. The Validity of the Miranda Waiver

1. The Waiver Must Be Knowing  [*31]  and Voluntary

A suspect’s waiver of Miranda rights is valid only if it is “made voluntarily, knowingly[,] and intelligently.” Miranda, 384 U.S. at 444. There are two essential elements of a valid waiver:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal[s] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed. 2d 197 (1979)). “The ‘totality of the circumstances’ to be considered in determining whether a waiver of Miranda warnings is valid based on [this] two-pronged approach . . . may include factors that are also considered in determining  [*32]  whether the confession itself is voluntary.” Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999).

Although it bears a “heavy burden” of demonstrating the validity of a waiver, Miranda, 384 U.S. at 475, “the State need prove waiver [of Miranda rights] only by a preponderance of the evidence,” Colorado v. Connelly, 479 U.S. 157, 168, 93 L. Ed. 2d 473 (1986). To meet its burden, the State need not adduce proof with respect to every factor that might have a bearing on the validity of the waiver. See Michael C., 442 U.S. 707, 724-28, 61 L. Ed. 2d 197 (holding that waiver by juvenile was valid where record contained no evidence regarding education or intelligence of juvenile).

While analysis of the waiver issue begins with a presumption that “a defendant did not waive his rights,” North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286 (1979), “litigation over voluntariness tends to end with the finding of a valid waiver,” Missouri v. Seibert, 542 U.S. 600, 609, 159 L. Ed. 2d 643 (2004). “[C]ases in which a defendant can make a colorable argument that a self-incriminating statement  [*33]  was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420, 433 n.20, 82 L. Ed. 2d 317 (1984). The “voluntariness of a waiver” of Miranda rights “depend[s] on the absence of police overreaching.” Connelly, 479 U.S. at 170. “An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.” Butler, 441 U.S. at 373.

Circumstances showing that a suspect “was threatened, tricked, or cajoled,” Miranda, 384 U.S. at 476, may be of crucial importance in determining the validity of a waiver. The use of threats to obtain a waiver obviously calls into question the voluntariness of a waiver. And the use of trickery or cajolery may support the conclusion that a waiver either was not made knowingly and intelligently or did not reflect an uncoerced choice. n7

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n7 Mere misstatements of fact by the police or the withholding of information by the police will not, however, necessarily render a waiver invalid. See State v. Pitts, 936 So. 2d 1111, 1132 (Fla. 2d DCA 2006).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*34]

2. Special Concerns Where the Suspect is a Juvenile

In the context of Miranda rights, “the question of waiver must be determined on ‘the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.’” Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461 (1938)). That a suspect is a juvenile is, of course, of significance in the analysis of the waiver issue. The inquiry into the totality of circumstances extends to the “evaluation of the juvenile’s age, experience, education, background, and intelligence, and [consideration of] whether [the juvenile] has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Michael C., 442 U.S. at 725. The “totality-of-the-circumstances analysis” necessarily allows consideration of “those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved.” Id.

Prior experience with the police and the administration of Miranda  [*35]  warnings are elements in a juvenile’s experience that militate in favor of the conclusion that a waiver is made knowingly and intelligently. But a lack of such experience is in itself not sufficient to show that a waiver was invalid because not made knowingly and intelligently. See Ruvalcaba v. Chandler, 416 F.3d 555, 560-61 (7th Cir. 2005) (upholding validity of Miranda waiver based on totality of circumstances despite fact that juvenile had no prior experience with law enforcement).

3. The Ramirez Analysis

In Ramirez, 739 So. 2d at 576, in holding that a juvenile’s oral Miranda waiver was invalid, the Florida Supreme Court focused on five factors:

(1) the manner in which the Miranda rights were administered, including any cajoling or trickery; (2) the suspect’s age, experience, background[,] and intelligence; (3) the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning; (4) the fact that the questioning took place in the station house; and (5) the fact that the interrogators did not secure a written waiver of the Miranda rights  [*36]  at the outset.

(Citations omitted.)

The court stated that it found “the manner in which the Miranda rights were administered to be a critical factor in determining that the waiver . . . was not knowing, voluntary[,] or intelligent.” Id. With respect to this factor, the court observed that “the Miranda warnings were not given until [the defendant] had made significant admissions of guilt” and that “one of the [interrogating] detectives minimized [the] significance [of the warnings] by suggesting in a casual, offhand manner that he did not expect [the defendant] to invoke his rights.” Id. Based on the circumstance that even though the police had “ample probable cause to arrest him for murder” they had told the defendant that he was not under arrest, the court held that it was “simply inappropriate for the police to make a representation intended to lull a young defendant into a false sense of security and calculated to delude him as to his true position at the very moment that the Miranda warnings [were] about to be administered.” Id. at 576-77; see also B.M.B. v. State, 927 So. 2d 219, 223 (Fla. 2d DCA 2006)  [*37]  (holding waiver invalid where “detective suggested to [juvenile suspect] that [juvenile's] actions were in the nature of a joke or prank and [detective] seemed to suggest that [those actions] were understandable”).

In connection with whether the defendant had been afforded the opportunity to consult with his parents, the Ramirez court noted the statutory duty imposed on the police to notify the parents of a juvenile who has been taken into custody. See § 985.207(2), Fla. Stat. (2004). n8 While acknowledging that “failure to comply with [the] statutory requirement does not render a confession involuntary,” the court concluded that the circumstance that the Miranda waiver “‘was given before [the juvenile] had the opportunity to talk with his parents or an attorney is certainly a factor militating against its’” validity–”especially in light of the manner in which the Miranda warnings were administered in this case.” Ramirez, 739 So. 2d at 577 (quoting Doerr v. State, 383 So. 2d 905, 907 (Fla. 1980)).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n8 In Ramirez, the court construed section 39.037(2), Florida Statutes (1995), as requiring law enforcement to attempt and to continue such attempt to contact a juvenile’s parents upon taking a juvenile into custody. 739 So. 2d at 577. The court noted that section 39.037(2) was the precursor to section 985.207(2), Florida Statutes (1997). 739 So. 2d at 577 n.6. The notification requirement in the 1995 version of section 39.037(2) is substantially the same as that in the 1997 and 2004 versions of section 985.207(2).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*38]

4. The Validity of M.A.B.’s Waiver

In the instant case, there are no circumstances similar to the circumstances identified by Ramirez as “a critical factor” supporting the conclusion that the waiver there was invalid. And although the evidence relevant to the waiver issue is not as fully developed here as it might be, the record before us hardly presents what Judge LaRose’s dissent suggests is “but a blank canvas.” Here, the signed waiver, the testimony concerning M.A.B.’s maturity and understanding, M.A.B.’s specific oral and written acknowledgment of his understanding of the Miranda rights, and the absence of any coercion, cajolery, or trickery all support the conclusion that M.A.B. gave a knowing, intelligent, and voluntary waiver of his rights.

The burden of proof was on the State, but the defense had a full opportunity to present evidence showing that the waiver by M.A.B. was not voluntary, knowing, and intelligent. The defense, however, presented no evidence showing that M.A.B. lacked the intelligence to comprehend the warnings which he said he understood. Nor did the defense present any evidence concerning M.A.B.’s education or prior experience with law enforcement.  [*39]  n9 And of course, the defense presented no evidence of coercion, cajolery, or trickery.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n9 The defense’s failure to present evidence concerning M.A.B.’s prior experience with law enforcement is quite understandable. See footnote 3.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Although not dispositive, M.A.B.’s written and oral acknowledgment that he understood his rights is surely a significant factor supporting the conclusion that a waiver was knowing and intelligent. n10 In upholding the validity of a juvenile’s Miranda waiver, the Supreme Court in Michael C. placed weight on the circumstance that the police “ascertained that [the juvenile] understood” the Miranda rights. 442 U.S. at 726. The police had ascertained that the rights were understood by receiving an affirmative response when they asked the juvenile if he understood the rights explained to him. Id. at 710. The Court further noted that “[t]here is no indication in the record that [the juvenile] failed to understand what the officers told  [*40]  him.” Id. at 726. In support of the validity of the juvenile’s waiver, the Court thus relied on the juvenile’s acknowledgment that he understood the Miranda rights and on the absence of evidence to the contrary.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n10 Some courts have specifically held that when the prosecution adduces evidence that a suspect acknowledged his understanding of the Miranda rights, a prima facie showing has been made that the waiver was valid. See State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978) (holding that ordinarily “if the prosecutor shows that the warning was given and that [the] defendant stated he understood his rights and then gave a statement, the state will be deemed to have met its burden of proof, unless there is other evidence” that the waiver was invalid); State v. Hernandez, 61 Wis. 2d 253, 212 N.W.2d 118, 121 (Wis. 1973) (“[W]hen the state has established that [the] defendant has been told or has read all the rights and admonitions required in Miranda, and the defendant indicates he understands them and is willing to make a statement, a prima facie case . . . has been established.”); cf. Chambers v. State, 742 So. 2d 466, 468 (Fla. 3d DCA 1999) (“It is well established that once the State has made a prima facie showing of the voluntariness of a confession, the burden of proof then shifts to the defendant to show that the confession was not voluntary.”); In re G.G.P., 382 So. 2d 128, 129 (Fla. 5th DCA 1980) (“If it appears prima facie that the confession was freely and voluntarily made, then the burden is upon the defendant to show that it was in fact not a voluntary confession.”).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*41]

The Court also relied on the absence of evidence concerning the defendant’s intelligence: “There is no indication that he was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be.” Id. In its analysis of the totality of the circumstances, the Court made no reference to the education of the juvenile. It is apparent from the opinion that no evidence was adduced on that factor. n11 Michael C. therefore makes clear (1) that evidence need not be presented with respect to every relevant factor and (2) that the absence of evidence on a relevant factor may be used to support a conclusion that the waiver was valid.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n11 In Michael C., the Court also relied on the juvenile’s prior experience with the justice system. 442 U.S. at 726. Here, although no evidence was presented at the motion hearing on that issue, the record before the trial court shows that M.A.B. had substantial experience with the juvenile justice system and was an absconder at the time of his arrest for the offenses at issue here.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*42]

As in Michael C., M.A.B.’s rights were properly explained, and “[t]here is no indication in the record that [M.A.B.] failed to understand what the officers told him.” 442 U.S. at 726. As in Michael C., “[t]here is [also] no indication that [M.A.B.] was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit.” Id. at 726-27.

The substantial factors supporting the validity of M.A.B.’s waiver are not outweighed by the circumstances militating toward a conclusion of invalidity. Based on the totality of the circumstances, the State met its burden of showing by a preponderance of the evidence that M.A.B.’s waiver of his rights was valid.

III. Conclusion

The trial court correctly determined that the Miranda warnings given to M.A.B. were adequate and that M.A.B. made a valid waiver of his Miranda rights.

DISSENT BY:   WALLACE; LaROSE; NORTHCUTT; CASANUEVA

DISSENT:   WALLACE, Judge, Dissenting.

Because I conclude that the Miranda warning given to M.A.B. failed to inform  [*43]  him of his right to have an attorney present during questioning, I respectfully dissent from Judge Canady’s opinion on the adequacy of the warning in this case. My conclusion that the warning itself was inadequate makes it unnecessary for me to reach the second issue concerning the validity of M.A.B.’s waiver of his rights.

In Miranda, the Supreme Court held that prior to custodial interrogation, law enforcement officers must inform a suspect of certain rights in order to protect the suspect’s Fifth Amendment privilege against self-incrimination from the inherently compelling pressures associated with in-custody interrogations. The suspect must be informed (1) that he has the right to remain silent, (2) that anything he says can be used against him in a court of law, (3) that he has the right to the presence of an attorney, and (4) that an attorney will be appointed if he cannot afford one. 384 U.S. at 479. Protecting the suspect’s Fifth Amendment privilege against self-incrimination requires that the right to counsel must include not only the right to consult with counsel prior to questioning but also the right to have counsel present during the interrogation. Id. at 470.  [*44]  The Supreme Court described the right to have counsel present during interrogation as “indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” Id. at 469. To explain why the right to have counsel present during interrogation is “indispensable,” the Court noted the many important functions that an attorney can perform during questioning. Id. at 469-70.

If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.

Id. at 470 (citing Crooker v. California, 357 U.S. 433, 443-48, 2 L. Ed. 2d 1448 (1958) (Douglas, J., dissenting)). The Supreme Court concluded its discussion of this part of the required warning by holding that “an individual held  [*45]  for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Id. at 471. The Court described this part of the required warning as “an absolute prerequisite to interrogation.” Id.

The requirement that law enforcement officers convey the warnings dictated in Miranda to a suspect prior to custodial interrogation is inflexible. However, the inflexibility of Miranda’s mandate does not extend to the form in which the warnings are given. See Duckworth, 492 U.S. at 202; Prysock, 453 U.S. at 359. In Prysock, the Court said that “no talismanic incantation” is required to satisfy the requirements of Miranda. 453 U.S. at 359. The Prysock court’s rejection of a requirement of a verbatim recital of the language of the words of the Miranda opinion was based on the statement in Miranda that “[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.” 384 U.S. at 476  [*46]  (emphasis added). This statement also prompted the Duckworth court to opine that “[r]eviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’” 492 U.S. at 203 (alteration in original) (quoting Prysock, 453 U.S. at 361). Thus, in conducting a de novo review of the adequacy of the Miranda warnings administered to M.A.B. in this case, see Roberts, 874 So. 2d at 1227, my task is to determine whether the warnings given reasonably conveyed to M.A.B. his right to have an attorney present during his interrogation.

Before considering the sufficiency of the warnings in M.A.B.’s case, it is helpful to examine decisions in which other courts have been called upon to consider whether a particular warning was the “fully effective equivalent” of the defendant’s “right to consult with a lawyer and to have the lawyer with him during interrogation” prescribed by Miranda. 384 U.S. at 471, 476. Generally speaking, courts have not found a violation  [*47]  of the requirements of Miranda when some formulation concerning the suspect’s right to have counsel present during questioning was included in the warnings administered to the suspect. For example, in Prysock, the Supreme Court concluded that the warnings under review in that case conveyed to the defendant his rights as required by Miranda. 453 U.S. at 360-61. The defendant was given the following warnings: “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning.” Id. at 356. The Court found that nothing in the warnings suggested a limitation on the right to the presence of counsel. Id. at 360-61. The Court noted that “‘[t]his is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning.’” Id. at 361 (alteration in original) (quoting United States v. Noa, 443 F.2d 144, 146 (9th Cir. 1971)). Similarly, the Duckworth court concluded that the warnings in that case met the Miranda requirements. 492 U.S. at 203. The police  [*48]  warned the defendant that “[y]ou have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning.” Id. at 198 (emphasis omitted). In clarifying the Miranda holding, the Court in Duckworth held that “Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.” Id. at 204. Because the defendant was informed that he had the right to an attorney before and during questioning, the warnings at issue in Duckworth were adequate. Id. at 203.

When a suspect is not explicitly informed of his right to have an attorney present during any questioning, the question of what constitutes a “fully effective equivalent” becomes more problematic. Most federal courts have held that warning an accused in a general manner of his or her right to an attorney is adequate. See Frankson, 83 F.3d at 82 (finding that the warning “[y]ou have the right to an attorney” communicated  [*49]  the right to an attorney both prior to and during interrogation (alteration in original)); Caldwell, 954 F.2d at 498, 502 (determining that “[y]ou have a right for an attorney” was an adequate warning because it did not actively mislead the defendant by suggesting a false limitation on his right to counsel); United States v. Davis, 459 F.2d 167, 169 (6th Cir. 1972) (concluding that the warning of “the right to consult a lawyer, at any time” provides an adequate apprisal of rights); Lamia, 429 F.2d at 376-77 (deciding that warning of “the ‘right to an attorney’” sufficiently apprised accused that he had the right to the presence of an attorney during questioning). However, when the warning qualifies the accused’s right to an attorney, federal courts have generally held the warning to be deficient under Miranda. See Noti, 731 F.2d at 614-15 (finding that “the right to the services of an attorney before questioning” does not advise accused of the right to counsel’s presence during interrogation); United States v. Fox, 403 F.2d 97, 99-100 (2d Cir. 1968) (determining that warnings did not comply with  [*50]  Miranda standards where accused was only informed that “he could consult an attorney prior to any question”); Windsor, 389 F.2d at 532-33 (finding warning that defendant “could speak to an attorney or anyone else before he said anything at all” was not a full Miranda warning because it did not inform defendant of the right to the presence of an attorney).

In this case, the detective warned M.A.B. that he had “the right to talk to a lawyer before answering . . . any of our questions.” This statement properly informed M.A.B. of his right to consult with an attorney prior to interrogation, but it did not inform him of the full extent of his right to counsel. Notification of the right to talk to a lawyer before questioning is not the equivalent of notification of the right to have a lawyer present during questioning. See Windsor, 389 F.2d at 533. These rights differ with respect to timing and, more important, to the types of assistance that counsel can provide at each stage of the process. As the Supreme Court said in Miranda, the right to have counsel present during questioning has significance independent of the right to consult counsel  [*51]  prior to interrogation. 384 U.S. at 470 (“Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process.”). Moreover, by informing M.A.B. only of his right to talk with an attorney before questioning, the warning suggested a limitation on his right to counsel that was false. Thus the warning under review in this case affirmatively misled M.A.B. about the extent of his right to counsel. For these reasons, the warning did not reasonably convey to M.A.B. that he had a right to have an attorney present during the interrogation.

The State argues that the last sentence of the warning was adequate to inform M.A.B. of his right to have counsel present during interrogation. The last sentence of the warning reads: “You have the right to use any of these rights at any time you want during this interview.” Granted, some courts have found warnings that include the language “at any time” to be adequate. See Davis, 459 F.2d at 169 (concluding without discussion that “the right to consult a lawyer, at any time” was an adequate warning); Lawrence v. Artuz, 91 F. Supp. 2d 528, 538 (E.D.N.Y. 2000)  [*52]  (holding statement that accused “had a right to have an attorney present ‘at any time’ was adequate to convey the notion that he had a right to have counsel present at the time of questioning”). Nevertheless, these decisions are not persuasive on the adequacy of the particular warning at issue in this case. Here, both the warning about the right to talk to counsel and the warning about the right to the appointment of counsel limit the rights by suggesting that they must be exercised before questioning. Thus the concluding statement in the warning telling M.A.B. that he has the right “to use any of these rights at any time” is confusing and contradictory.

In addition, even if one assumes that the warning’s final sentence expands the scope of the warning as a whole to include the pre-interrogation and interrogation stages, the expanded warning still fails to inform M.A.B. of his right to a lawyer’s presence during interrogation. Nothing about the statement that “[y]ou have the right to use any of these rights at any time you want during this interview” informed M.A.B. that he had a right not only to consult with an attorney in conjunction with the interrogation process but also  [*53]  had the right to have that attorney present with him during the interrogation. Cf. Atwell, 398 F.2d at 509 n.8, 510 (finding that warning of “right to consult with an attorney, anyone of his choosing at anytime” does not comply with Miranda directive that defendant be warned of his right to have a lawyer with him during interrogation). For this reason, the warning administered to M.A.B. was not a “fully effective equivalent” of the warning required under Miranda. n12

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n12 Other Florida courts have recently addressed the issue of the adequacy of Miranda warnings. See, e.g., Gillis v. State, 930 So. 2d 802 (Fla. 3d DCA 2006); Octave, 925 So. 2d 1128; Maxwell, 917 So. 2d 404; West, 876 So. 2d 614; Roberts, 874 So. 2d 1225. I have not discussed these cases here because the issue raised by the language of the warning under review in M.A.B.’s case differs from the issues raised by the language of the warnings in these cases.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*54]

In Miranda, the Supreme Court stressed the importance of properly administering the required warning concerning the accused’s right to counsel by stating: “No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” 384 U.S. at 471-72. Because the warning M.A.B. received was inadequate to fully inform him of his constitutional rights, I believe that the trial court erred in denying M.A.B.’s motion to suppress his statements. After a thorough review of the record, I also conclude that the trial court’s error in admitting M.A.B.’s statements into evidence was not harmless. I would reverse M.A.B.’s adjudication of delinquency and disposition, and I would remand for further proceedings.

Before closing, I offer the following observations on the question certified by the court. I have reservations about whether the question framed fairly presents the issue of the adequacy of the Miranda warning that was administered to M.A.B. The certified question states the issue as involving “Miranda warnings which  [*55]  advise of both (a) the right to talk to a lawyer ‘before questioning’ and (b) the ‘right to use’ the right to consult a lawyer ‘at any time’ during questioning.” But the warning under review in this case does not advise the accused of “the ‘right to use’ the right to consult a lawyer ‘at any time’ during questioning.” Instead, the catch-all phrase at the end of the warning says something quite different: “You have the right to use any of these rights at any time you want during this interview.” The prior reference in the warning to “the right to talk to a lawyer” is described as a right that must be exercised “before answering any of our . . . questions” (emphasis added). Thus the warning does not-as the certified question indicates-inform the accused of “the ‘right to use’ the right to consult a lawyer ‘at any time’ during questioning” (emphasis added).

That said, I acknowledge the difficulty of framing the issue of the adequacy of the warning under review without restating the warning in its entirety as part of the question. In addition, I agree that the question of the adequacy of the Miranda warning that was administered to M.A.B. is one of great public importance.  [*56]  For these reasons, I concur in the certification of the question.

LaROSE, Judge, Dissenting.

I concur fully in Judge Wallace’s dissenting opinion. I write separately to voice my concern that even if the police had informed M.A.B. of his right to counsel during interrogation, the trial court lacked an adequate basis to conclude that M.A.B., a fifteen-year-old, voluntarily, knowingly, and intelligently waived his Miranda rights.

The State bears a heavy burden to demonstrate that a defendant waived his privilege against self-incrimination and the right to counsel. Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999). As we have stated, “[t]his burden is even heavier when the suspect is a juvenile.” B.M.B., 927 So. 2d at 222. In light of this heightened standard, I am unpersuaded by Judge Canady’s reliance on cases from other jurisdictions involving confessions by adults. See Linder, 268 N.W.2d 734; Hernandez, 61 Wis. 2d 253, 212 N.W.2d 118.

The trial court can find a waiver of Miranda rights only if the totality of the circumstances surrounding the interrogation reveal an uncoerced choice made with an understanding  [*57]  of the consequences of foregoing these constitutional rights. Ramirez, 739 So. 2d at 575 (citing Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410 (1986)). In examining the totality of the circumstances, the trial court should scrutinize: (1) the manner in which the Miranda rights were administered, including any cajoling or trickery; (2) the suspect’s age, experience, background, and intelligence; (3) whether the suspect’s parents were contacted and whether the juvenile had an opportunity to consult with his parents before questioning; (4) the place of interrogation; and (5) whether the police secured a written waiver of Miranda rights prior to interrogation. Id. at 576.

Although the record before us does not reflect any trickery or cajoling by law enforcement officials, I cannot say that this factor, alone, compels the result reached by Judge Canady. After all, the totality of the circumstances analysis dictates that no single factor is dispositive. United States v. Drayton, 536 U.S. 194, 207, 153 L. Ed. 2d 242 (2002) (holding that totality of the circumstances means not giving extra weight to any one specific factor);  [*58]  State v. Colitto, 929 So. 2d 654, 660 (Fla. 4th DCA 2006) (en banc) (Farmer, J., dissenting) (citing Drayton and other cases for the proposition that no single factor is dispositive to totality of circumstances). Yet, when dealing with a Miranda waiver by a juvenile, the trial court’s examination of the totality of the circumstances must, necessarily, focus on the juvenile’s “age, experience, education, background, and intelligence.” Michael C., 442 U.S. at 725. In my view, the factual record as to whether M.A.B. voluntarily and knowingly waived his Miranda rights is but a blank canvas untouched by any strokes of factual findings of waiver.

Upon detaining M.A.B. in the late afternoon, police officers handcuffed and transported him to the police station. They placed him in a secure interview room where he remained alone and handcuffed. Approximately thirty to forty minutes later, an officer, wearing his handgun, entered the room and questioned M.A.B. for about ten minutes. Prior to questioning, M.A.B. signed a form stating that he had been advised of and had waived his Miranda rights. The interrogation was not recorded. n13

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n13 As some of the cases cited by Judge Canady suggest, audio or video recordings undoubtedly assist the trial court in assessing the voluntariness of a suspect’s confession. See Michael C., 442 U.S. at 710-11, 719, 726-27 (majority); id. at 733 (Powell, J., dissenting); Chambers, 742 So. 2d at 467-68; In re G.G.P, 382 So. 2d at 130.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -  [*59]

At the time of questioning, the officer knew that M.A.B. was a juvenile but did not know his age. The officer knew nothing about M.A.B.’s background, school grade level, or intelligence. He did not know if M.A.B. had any prior experience with law enforcement. The officer’s conclusion that M.A.B. seemed mature and appeared to understand what was happening is untethered to any factual foundation.

Although the police department’s standard operating procedure was to contact a parent before questioning a juvenile or to have a parent present at questioning, the officer testified that this procedure was preferred but not required. Nothing in our record indicates that the officer contacted or attempted to contact a parent before obtaining the Miranda waiver or at any other time prior to or during the questioning of M.A.B. Indeed, a second officer who questioned M.A.B. testified that he and the other officer did not discuss contacting M.A.B.’s parents or guardian. In my review of the record, nothing supports the State’s suggestion that M.A.B. had an opportunity to call his mother or sister before questioning. And, the record reveals no explanation as to why the officers departed from  [*60]  a standard procedure. I recognize that there is no constitutional requirement that the police notify a juvenile’s parents prior to questioning. See J.G. v. State, 883 So. 2d 915, 924 (Fla. 1st DCA 2004) (citing Frances v. State, 857 So. 2d 1002, 1003 (Fla. 5th DCA 2003)). However, the failure to do so is relevant to assessing the voluntariness of the Miranda waiver. § 985.207(2); J.G., 883 So. 2d at 924.

The trial court concluded that M.A.B.’s signed waiver of rights form was adequate and that the interrogation was neither coercive nor oppressive. On that basis, alone, the trial court concluded that M.A.B. made a voluntary, knowing, and intelligent waiver of his Miranda rights. The paucity of evidence before us and the lack of specific factual findings by the trial court forces me to question whether M.A.B. could have waived his Miranda rights “‘with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’” See J.G., 883 So. 2d at 924-25 (quoting Moran, 475 U.S. at 421). The police officers knew virtually nothing about M.A.  [*61]  B. when they questioned him. And, the factual basis for a valid Miranda waiver remained undeveloped at the suppression hearing.

Judge Canady observes that M.A.B. had prior experience with law enforcement. Based on my review of the record, however, I cannot conclude that such information, even if accurate, was available to or considered by the trial court when it denied the suppression motion. Cf. Michael C., 442 U.S. at 713, 726-27 (finding record amply supported trial court’s conclusion that juvenile was not “a young, naive minor with no experience with the courts.”). Further, the trial court’s reliance solely on a signed waiver of rights form falls far short of providing a detailed factual basis supporting a valid Miranda waiver. The cases cited by Judge Canady recognize the importance of such support. See, e.g., Linder, 268 N.W.2d at 735 (affirming trial court’s ruling that State failed to meet burden of proving knowing, intelligent, and voluntary waiver where trial court order suppressing confession contained detailed recitation of events surrounding defendant’s interrogation); Chambers, 742 So. 2d at 468 (upholding  [*62]  denial of motion to suppress where trial court’s ruling was well-reasoned and included specific findings of voluntariness based on review of audiotaped interview); In re G.G.P., 382 So. 2d at 130 (reversing denial of motion to suppress confession where recorded interview before trial court demonstrated that defendant was coerced to confess based on promise of immunity from prosecution).

In my view, the totality of the circumstances considered by the trial court established only that M.A.B. seemed to understand the waiver form he signed. Merely reading a Miranda rights form to a juvenile or having him read the rights form does not, by itself, establish that he understood the rights he was giving up and the consequences of his waiver. Id. at 925. My concern is heightened by the fact that with so little information about M.A.B., the police ignored a preferred department policy and chose not to contact a parent or guardian prior to questioning.

I certainly do not suggest that a juvenile can never waive the rights protected by Miranda. Of course, he can. But based on our record, I would insist on a more probing inquiry under Ramirez before concluding that  [*63]  M.A.B. waived his Miranda rights.

NORTHCUTT, Judge, Dissenting.

I agree with the dissenting opinions of Judges LaRose and Casanueva. With one exception, I also agree with Judge Wallace’s dissenting opinion. My only difference is with Judge Wallace’s view that the advice given to M.A.B. that he could exercise his rights at any time during the interview was confusing and contradictory. I believe that, in context, that statement easily would be understood to mean that the suspect could have a lawyer appointed at any time during the interview and then talk to the lawyer before answering any of the officers’ questions.

The problem, as Judge Wallace’s opinion ably details, is that the ability to talk to a lawyer before answering a question is not the same as having the lawyer present during questioning. At most custodial interrogations, the attendee who is least likely to discern that the suspect should consult counsel before answering a particular question is the suspect himself. Moreover, even if the suspect appreciates his need to seek legal counsel before answering a question, he might hesitate to do so for fear that it would make him appear guilty or cause the interrogators  [*64]  to focus their investigation on a particular area of inquiry.

As described in the warning given in this case, M.A.B.’s right to counsel consisted of seeking advice about a particular question, thus leaving M.A.B. on his own to assess the potential ramifications of answering a question before seeking legal counsel. As such, it simply was not a “fully effective equivalent” of a warning that would have “clearly informed” M.A.B. that he had a “right to consult with a lawyer and to have the lawyer with him during interrogation.” Miranda, 384 U.S. at 471 (emphasis supplied).

CASANUEVA, Judge, Dissenting.

Although I recognize that the decisional law has not prescribed talismanic warning language, I also conclude that the warning given to M.A.B. did not comply with the dictates of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), and its progeny. Therefore, I must respectfully dissent. Critical, in my view, is Miranda’s mandate that a suspect be told that he or she has the right to the presence of an attorney. This is the overarching right from which the right to talk to or consult with an attorney flows. Advising a suspect that he  [*65]  or she has the right “to talk to a lawyer before answering . . . any of our questions” constitutes a narrower, less functional warning than that required by Miranda.

The Fifth Amendment to the United States Constitution specifies that no person “shall be compelled in any criminal case to be a witness against himself.” To insure compliance with the protections of the Self-Incrimination Clause when a suspect has been deprived of freedom during a custodial interrogation, the Court identified four essential warnings in Miranda: A suspect “must be warned prior to any custodial questioning [(1)] that he has the right to remain silent, [(2)] that anything he says can be used against him in a court of law, [(3)] that he has the right to the presence of an attorney, and [(4)] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 384 U.S. at 479.

Clearly, suspects must be specifically informed that they possess these constitutional rights before law enforcement officers undertake any questioning to solicit incriminating statements that will later be used against them in court. This case focuses on the third  [*66]  right–the right to presence of an attorney–which “must be afforded to [suspects] throughout the investigation.” Id. (emphasis supplied). Here, M.A.B. was not unequivocally informed that he had the right to the presence of an attorney at any and all times during questioning.

My position is derived not only from Miranda but also from the Court’s observations concerning that case in Dickerson v. United States, 530 U.S. 428, 147 L. Ed. 2d 405 (2000). Chief Justice Rehnquist, in his analysis of the underpinnings of the Miranda rule and the evolution of the law governing voluntariness and admissibility of a suspect’s confession, reiterated the constitutional bases for the voluntariness requirement. Those rights were historically premised on both the Self-Incrimination Clause and the Due Process Clause of the Fourteenth Amendment, but Miranda changed the focus of the Fifth Amendment inquiry. Dickerson, 530 U.S. at 433-34. No longer was physical brutality or the “third degree” the major evil to be stemmed; by the time the Court wrote Miranda in 1966, law enforcement departments, seizing advantage from the fact that “custodial interrogation  [*67]  exacts a heavy toll on individual liberty and trades on the weakness of individuals,” id. at 435 (quoting Miranda, 384 U.S. at 455), had developed psychologically coercive practices to extract statements from suspects in custody. The Dickerson Court therefore again emphasized that the “coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that a suspect’s Fifth Amendment privilege against self-incrimination will be obliterated. 530 U.S. at 435.

Because the rule announced in Miranda is inextricably bound to a suspect’s Fifth Amendment privilege, the warnings have taken on constitutional dimensions. In order to guard against the unacceptable risk of violation of a suspect’s privilege against self-incrimination, “the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution’s case in chief.” United States v. Patane, 542 U.S. 630, 639, 159 L. Ed. 2d 667 (2004) (plurality opinion of Thomas, J., joined by Rehnquist, C.J., and Scalia, J.). Thus,  [*68]  voluntariness of the statements is an inappropriate consideration for resolution of a Miranda challenge; and a concomitant disadvantage of the Miranda rule is that “statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and a guilty defendant go free as a result.” Dickerson, 530 U.S. at 444.

In order to dispel the compulsion and coercion inherent in custodial surroundings, the Miranda rule requires the disclosure of important safeguards, including “the presence of counsel . . . [to] insure that statements made in the government-established atmosphere are not the product of compulsion. Miranda, 384 U.S. at 466. The Court’s emphasis on the need for counsel’s presence could not have been stronger:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the  [*69]  individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. . . . Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

Id. at 469-70 (citations omitted; emphasis added).

In my view, the warning that M.A.B. received was constitutionally flawed because the right to talk to or consult with an attorney is not identical to the right to the presence of an attorney. Miranda requires that suspects be “clearly informed” of their right to have a lawyer with them during questioning. Id. at 471. “[T]his warning is an absolute prerequisite to interrogation.” Id. The safe harbor language–that M.A.B. was informed of his “right  [*70]  to use any of these rights at any time . . . during this interview”–simply cannot cure the deficiency because M.A.B. was never informed that he had the right to have a lawyer with him at all times during his custodial interrogation. Therefore, it was fruitless to tell him that he could exercise the right at any time when he was never informed of the right in the first instance.

The hallmark of Miranda is the need for effective communication to a suspect of the basic constitutional right against self-incrimination. The right to talk to a lawyer before answering questions, which M.A.B. was told was his privilege, is derivative of his and every suspect’s greater right to have an attorney present at all times during custodial interrogation. That right was never unequivocably conveyed to M.A.B. Thus, the language used by the police department in this case does not rise to a functional equivalent of the required Miranda warning.

Over a century ago, Oliver Wendell Holmes wrote:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even  [*71]  the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

The Common Law 5 (Mark DeWolfe Howe ed., Little, Brown & Co. 1963) (1881). Miranda arose from law enforcement practices existing both before and at the time of the opinion, which the Supreme Court concluded necessitated a protective constitutional rule. Miranda exists so that those experiences are not repeated; and, if repeated, a penalty is extracted. The necessity for this rule has been woven into our constitutional fabric.

Because I conclude that allowing M.A.B.’s statements to be used against him violates his constitutional rights, I would hold that the court should have ordered that his statements be suppressed.

Courtesy of David Edelstein

SHANE MITCHELL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-1159

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Brevard County, David Dugan, Judge.

DISPOSITION:   AFFIRMED in part; REVERSED in part.

COUNSEL:   James S. Purdy, Public Defender and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Shane Mitchell, Blountstown, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, C.J., SAWAYA and EVANDER, JJ., concur.

OPINION:   PER CURIAM.

Shane Mitchell appeals the judgment and sentence imposed following the return of the jury verdict finding him guilty of four counts of the lesser included offense of battery, one count of the lesser included offense of felony battery, and one count of false imprisonment. He argues that: (1) the trial court erred in instructing the jury on the four lesser included battery offenses; (2) the trial court erred in assessing restitution for the speculative losses of unearned and undeterminable tips and bonuses; and (3) the trial court erred in denying, in part, his motion to correct a sentencing error. We affirm as to the first two issues.

Regarding the third issue, we agree with Mitchell that the trial court erred in failing to delete  [*2]  Special Condition F of Mitchell’s probation, which delegated to the probation officer the authority to order alcohol and drug testing in order for the probation officer to determine whether any substance abuse treatment was necessary. We also agree that because section 939.185(1)(a), Florida Statutes, was not in effect at the time Mitchell committed his offenses, the amount of $ 65.00, which was imposed as an additional court facility fee, must be stricken. See Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007). We therefore strike Special Condition F and the $ 65.00 fee. In all other respects, we affirm the judgment of conviction and sentence imposed on Mitchell.

AFFIRMED in part; REVERSED in part.

PLEUS, C.J., SAWAYA and EVANDER, JJ., concur.

Courtesy of David Edelstein

P.B.P., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D03-5368

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

April 27, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge.

DISPOSITION: Affirmed.

COUNSEL: James Marion Moorman, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

JUDGES: SILBERMAN, Judge. VILLANTI, J., Concurs. KELLY, J., Concurs in part, dissents in part.

OPINION BY: SILBERMAN

OPINION: SILBERMAN, Judge.

P.B.P. appeals a juvenile probation order in which the trial court found that he committed the offenses of battery on a law enforcement officer, obstructing or opposing an officer with violence, and obstructing or opposing an officer without violence. He contends that the trial court erred by denying his motion for judgment of dismissal, arguing that the police officers were not engaged in the lawful performance of their duties at the time of the events giving rise to the charges. n1 We affirm.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 The statutes under which P.B.P. was charged use slightly different terms. Section 784.07(2), Florida Statutes (2003), refers to the “lawful performance of his or her duties.” Sections 843.01 and 843.02, Florida Statutes (2003), refer to the “lawful execution of any legal duty.”

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [*2]

A motion for judgment of dismissal in a juvenile case tests the legal sufficiency of the evidence presented by the State. R.J.K. v. State, 928 So. 2d 499, 502 (Fla. 2d DCA 2006). In considering such a motion, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the State. Id.; E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003). The motion should be denied if a rational trier of fact could find that the elements of the offense were proven beyond a reasonable doubt. R.J.K., 928 So. 2d at 502; E.A.B., 851 So. 2d at 310. If the evidence is insufficient to establish a prima facie case for the charged crime, then dismissal is proper. E.A.B., 851 So. 2d at 310. As to whether an officer is engaged in the lawful performance of a legal duty, if the facts and inferences that may be drawn from the facts are in dispute, the issue is for the trier of fact. Williams v. State, 511 So. 2d 740, 742 (Fla. 5th DCA 1987). We review the trial court’s denial of a motion for judgment of dismissal de novo. E.A.B., 851 So. 2d at 310. [*3]

The facts developed at the adjudicatory hearing, viewed in the light most favorable to the State, are as follows. At about 3:00 a.m. on May 18, 2003, the Tampa Police Department received an anonymous call complaining about juveniles running through the backyards of homes on Marissa Ridge Place in Tampa. Officers Perrone and Larose responded, and Officer Bruce arrived as backup. All three were in full uniform.

Upon arriving at the scene and exiting the car, Officer Larose thought he heard voices coming from behind one of the houses. Although it is not entirely clear from the record, it appears the noises Officer Larose heard came from behind houses located across the street from the house from which the disturbance call had originated.

In the meantime, Officer Perrone approached the back of the house from which the disturbance call had originated to see if he could determine if juveniles were running through the backyard. Notably, the backyards in the area were open spaces, with no fences. Officer Perrone walked south and stood between a house that was one house south of the address to which the officers had responded and P.B.P.’s house. Thus, P.B.P.’s house was two houses south [*4] of the address to which the officers had responded. Officer Bruce arrived and joined Officer Perrone at this location. Both Officers Perrone and Bruce saw that a screen had been removed from a window on the second story of P.B.P’s house and that the screen was “laying on the side of the window.” The house was completely dark inside. Officer Perrone pointed his flashlight and noticed “someone peeping through the window” that was on the northwest corner of the house. The person “quickly tried to hide.” He then pointed his flashlight toward the living room/kitchen area of the house, where it was dark, and observed someone hide under the countertop.

Officer Perrone told Officer Bruce to remain in place while Officer Perrone tried to make contact at the front door. Officer Perrone went to the front door of P.B.P.’s house and knocked. After three or four minutes, P.B.P. came to the door. Officer Perrone told P.B.P. what he had observed regarding the screen and people hiding in the house and asked if P.B.P.’s parents were home. P.B.P. said that his mother was in Los Angeles. When Officer Perrone asked if P.B.P. could produce identification to prove that he lived at the house, P.B.P. said [*5] he would go and get identification. He then shut the door.

Officer Larose, who was across the street, testified that he observed Officer Perrone speaking with P.B.P. P.B.P. then went inside the house and shut the door as Officer Larose walked across the street to Officer Perrone’s location. Officers Perrone and Larose testified that seconds after P.B.P. reentered the house, they heard Officer Bruce giving loud voice commands, and they went to the back of the house.

Officer Bruce, who was still in the grassy area to the rear of P.B.P.’s house, observed P.B.P. go to the rear sliding doors on the west side of the house. Officer Bruce stood about ten to twenty-five feet away. P.B.P. called out and told Officer Bruce “in rather colorful language, to get out of his yard and out of his residence.” Officer Bruce approached P.B.P. and identified himself. At that point, P.B.P. was standing just inside the door while Officer Bruce was about three feet away. Officer Bruce asked P.B.P. to “please identify himself.” P.B.P. refused and told Officer Bruce to go to the front of the house and that he would then identify himself.

Officer Bruce stated that he asked P.B.P. for identification because [*6] he did not know if P.B.P. resided in the house and because he had observed a number of beer bottles in the area. When Officer Bruce again asked P.B.P. for his name and age, P.B.P. refused to give his name but said that he was seventeen years old and that his parents were away. He then reached out and hit Officer Bruce on the left shoulder. Officer Bruce told P.B.P. not to touch him and that “it was battery on a law enforcement officer.” P.B.P. then made another motion towards Officer Bruce with his arm, which Officer Bruce blocked.

When Officer Perrone went to the rear area, he saw P.B.P. get “very close to Officer Bruce’s face, screaming at him very verbally, that he wasn’t getting him shit and told him to get the fuck off his property.” When Officer Perrone attempted to take P.B.P. into custody for battery on a law enforcement officer, P.B.P. began punching and kicking at the three officers. P.B.P. broke free and began running, then fell down. He got up and started running again, but the officers were able to arrest him.

At the close of the State’s case, P.B.P. argued his motion for judgment of dismissal. The trial court denied the motion, finding that the State had presented a [*7] prima facie case and stating as follows:

On the central issue of the lawful performance of duty on this particular evening, indeed, officers had been called by an anonymous complaint at 3:00 in the morning to an area where there was a complaint of juveniles running through the back area and as counsel’s just pointed out, the evidence indicates and indeed they were there acting reasonably walking through the area. They came to a home only two doors from apparently the area of the initial complaint according to the evidence of Officer Bruce and I believe Officer Perrone, at which time their suspicions and concerns were aroused further by seeing the screen near a window of a door and what appeared to be as they were flashing their lights around some, at least, momentarily alarming activities at the house and one staring out at them. They didn’t act unreasonably, they knocked on the door and were waiting patiently at the front of the door when the evidence indicates that the defendant was exiting the back of the door where he encountered an officer who once again asked for ID. It was at that point that the evidence indicates for the purpose of the State making its case that the [*8] defendant struck an officer, an officer he knew to be an officer, who this Court will find at that point for the purposes of this motion, was in the lawful performance of his duty. At that moment he struck that officer in lawful performance of his duty the circumstances completely change because now they indeed began a process of trying to take him into custody. This led to all of the later matters which included the evidence that the State has shown at this point for the purpose of the motion was a resisting with violence and resisting without violence. So the motion will be denied. Those are the findings of the Court.

P.B.P. then testified and disputed the officers’ testimony. He acknowledged that when he first spoke to officers at the back sliding glass door, one officer said the police were there because “he believed that there was a burglary.” Two neighbors testified that they were awakened by P.B.P. running through their backyard screaming and calling for help as the police officers chased him. They testified that they had not heard any earlier disturbances that night. They described P.B.P.’s demeanor and appearance, including that he looked terrified and that his eyes were [*9] very red. The State called Officer Perrone as a rebuttal witness. He testified that on the night in question, P.B.P. appeared to be intoxicated. His speech was slurred, he had bloodshot eyes, he smelled of alcohol, and he was very belligerent in his tone.

At the close of all of the evidence, P.B.P. renewed his prior motions, and the trial court stood by its rulings. In closing argument, P.B.P. asserted that the officers entered his property without consent and without any reasonable basis. He contended that the officers trespassed on his property, that the State did not establish that the officers were engaged in the lawful execution of a legal duty, and that the State did not establish that exigent circumstances existed.

The trial court again concluded that the officers were engaged in the lawful performance of their duties and found that P.B.P. had committed the charged offenses. The court stated its findings as follows:

As has been established beyond a reasonable doubt by the evidence, we’re talking about approximately 3:00 in the morning and the report that they received, as the evidence indicated from an anonymous source, was that there were juveniles running through [*10] the backyards and so they responded. And in fact they began walking in the yard areas — the yard areas in the back as described to the Court without fences back there. They’re walking between yards and in fact now they come to a home and they’ve got their flashlights and they come to the home and their attention is attracted by a screen down on a home near a window. They proceeded at that point with Officer Bruce in the back of the home area with Officer Perrone in the front. Officer Perrone knocked on the door and that’s where he encountered for the first time the defendant in this case, who came to the door of what is his home and he was — and the Court will find that the officers had noticed something strange before that because as was testified they had seen someone peering out the window. They had seen someone, apparently through their observation, trying to hide under a counter in the home. All of this taken together with the screen and the report of juveniles in the back as they have described caused them to have a very reasonable suspicion and to be cautious and to go about their lawful performance of duties. And they knocked on the door and someone came there and — and [*11] they spoke to them. And it was described that the parent was in Los Angeles but — and then finally it was described that he was in fact seventeen, a juvenile, and the officer asked for identification and the individual closed the door and said he’d go get the identification. Now, comes the encounter in the backyard and this is pivotal to the case. At that time there is another officer in the back. Now the defendant goes to the back. He opens and he encounters Officer Bruce. The Court is going to find and the evidence establishes beyond a reasonable doubt at that point there were some angry words at which time Officer Bruce is essentially asking the same question as the Officer at the front, “Give me some identification, we’ve got some strange circumstances.” And again there is some spirited discussion obviously with [P.B.P.], the defendant, ordering them off his property as they stood near the back door. It’s at that point that [P.B.P.] reached out with his right hand and struck the officer in this case, Officer Bruce — make sure we’re correct, and struck the officer in his left shoulder. Now, in this point in time the officer had identified himself as he testified, he was in [*12] full uniform. He was asking the defendant to identify himself when he refused to do so. In fact, he told the officer at that point if he’d go to the front with the other officers he’d get some ID, but again this spirited conversation and exchange as it’s described, but it culminated with [P.B.P.] putting hands on, striking against the will of the law enforcement officer who was in the lawful–engaged in lawful performance of his duty at the time.

The trial court then discussed the officers’ efforts to take P.B.P. into custody and ultimately found that P.B.P. had committed the charged offenses. After announcing its detailed findings, the court withheld adjudication and placed P.B.P. on probation.

On appeal, P.B.P. argues that the trial court should have dismissed the charges because the police officers were not engaged in the lawful execution of their duties and, therefore, had no lawful basis to enter his backyard. We disagree.

A reasonable expectation of privacy exists in the backyard of a residence that is not generally viewed by the public, but that expectation gives way in an emergency situation. State v. Duda, 437 So. 2d 794, 795 (Fla. 2d DCA 1983). In [*13] Duda, the police responded to a radio bulletin concerning a domestic disturbance or a possible fight, and an officer went to the rear of the house because he heard shouting. The court noted that the existence of a potential emergency situation justified the officers’ presence in the backyard. Id. at 795-96. The court stated that the “determination of the existence of an emergency is to be measured by the reasonableness of [the officers'] belief at the time, not the existence of an emergency in fact.” Id. at 795. In Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981), the supreme court stated as follows:

The reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances. The right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law.

In A.E.R. v. State, 464 So. 2d 152 (Fla. 2d DCA 1985), the court considered whether, in response to a neighborhood trespassing complaint, police officers could lawfully [*14] enter the side yard of a home without a warrant. The officers first went to the front door in response to the complaint. They observed “juveniles jumping up and running toward the back door,” which the court stated gave “rise to the inference that the juveniles were eluding the officers and perhaps adding credence to the complaint.” Id. at 154. The court acknowledged that there is a “reasonable expectation from unreasonable governmental intrusion” that exists for that part of a backyard that is blocked from view from the front yard or the street. Id. at 153. However, based on exigent circumstances, the court concluded that the officers were justified in entering the side yard. Id. at 154.

In In re J.B., 621 So. 2d 489 (Fla. 4th DCA 1993), an officer responded to a disconnected 911 call. Upon arriving at the home from which the call originated, he rang the doorbell. J.B. responded and indicated that he had no knowledge of anyone calling 911 and that he and friends were “messing around.” Id. at 490. The officer asked if J.B.’s mother was home, and J.B. said she was not. J.B. “then told the officer to [*15] get off of his property.” Id. The officer remained concerned because he had observed that a screen was off one of the front windows and that trash was all over the front room of the house. He tried to enter through the screen door, but it was locked. The officer asked J.B. to open the door, but J.B. refused, slammed the door shut, and locked it. The officer ran to the back of the house and saw J.B. pick up a stick. The officer then entered the sliding glass doors, and J.B. approached the officer with the stick. Eventually, J.B. was arrested and charged with resisting arrest and assault on a law enforcement officer. Id.

The court in J.B. rejected J.B.’s claim that the officer was not in the lawful execution of a legal duty because the officer attempted to break into the home when J.B. closed the door. The court noted that the police had the duty and obligation to investigate the 911 call and stated that under the circumstances, it “cannot second guess the officer’s concern” that someone might have needed aid or that, given the missing screen and the condition of the living room, a burglary may have just taken place. Id. at 490-91. The court concluded that [*16] “[t]he reasonableness of the officer’s response to an emergency situation is a question of fact for the trial court which we should not disturb absent a clear error.” Id. at 491.

The circumstances here compel a similar conclusion and support the trial court’s denial of P.B.P.’s motion to dismiss. At 3:00 a.m., the police officers responded to a disturbance call involving juveniles running through backyards. As the officers tried to determine whether juveniles were in the open backyard area, they saw suspicious circumstances at P.B.P.’s house, including an open window with the screen to the side, someone “peeping through” a window then trying to hide, and someone trying to hide under a counter. At this point, the officers were standing between two homes, and it is unclear whether they had actually entered P.B.P.’s yard.

Officer Perrone went to the front door while Officer Bruce remained in the rear area between P.B.P.’s house and a neighbor’s house. Although P.B.P. responded to the front door after a few minutes delay, he then went back into the house and to the rear door, where he called out to Officer Bruce using “colorful language.” The officers still did not [*17] know P.B.P.’s identity, whether he had been involved in the earlier disturbance, or whether he was trespassing in or burglarizing the house. Officer Bruce approached P.B.P. at the rear only after P.B.P. called out. Neither Officer Bruce nor any of the officers tried to enter the house. Instead, when they tried to ascertain P.B.P.’s identity to determine whether he actually lived in the house, P.B.P. struck Officer Bruce. Under the totality of these circumstances, we conclude that the trial court did not err in determining that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal.

The dissent argues that the officers did not have a legally sufficient basis, such as exigent circumstances, to enter or remain in the backyard areas, including P.B.P.’s backyard. However, as the court observed in Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003),

[t]here is no catalog of all of the exigencies that may allow a warrantless search of a residence primarily because “[t]he reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances. [*18] ” Nevertheless, precedent provides us the necessary guidance and we derive therefrom that exigencies or emergencies related to the safety of persons or property may support a warrantless entry into a home. Hence, the police may enter a home to investigate a suspected burglary or to check on the safety of its residents, as those circumstances are generally considered exigent circumstances.

(Citations omitted.) The court added that “[a]n entry based on exigent circumstances must be limited in scope to its purpose” and that the police cannot continue a search once they determine that no exigency exists. Id.

The dissent also discusses several cases, the outcomes of which turn on the specific facts and circumstances of those cases. For example, in United States v. McClain, 444 F.3d 556 (6th Cir. 2005), the issue involved entry into and a search of a house. The police responded to a phone call from a neighbor who reported seeing a light in a house that had been vacant. An officer saw that lights were on, and he performed a complete inspection of the outside of the house. The officer found no open or unlocked windows, gates, or doors, except he noted that the [*19] front door was slightly ajar. The officer entered the house even though there were no signs of forced entry, vandalism, or any kind of illegal activity. Id. at 559-60. In fact, both officers who responded to the call testified that there was no emergency that necessitated their entry into the home and that there were no signs of any criminal activity. Id. at 563.

The court concluded that the police were not justified in entering and searching the home, commenting that something more was required, “namely, the existence outside the searched premises of some physical signs of a burglary or some direct evidence of a home invasion.” Id. at 563. In discussing the basis for a warrantless entry into a residence without a warrant, the court stated that probable cause is required, “defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” Id. at 562 (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993)). In this context, “probable cause ‘requires only a probability or substantial chance of criminal activity, not an actual showing of such [*20] activity.’” Id. at 563 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 76 L. Ed. 2d 527 (1983)). While mere speculation that a crime could be occurring is not enough, if the police have an “‘objectively reasonable basis for their belief’ that a crime is being committed,” a warrantless search is justified. Id. (quoting United States v. Ukomadu, 236 F.3d 333, 337 (6th Cir. 2001)).

United States v. Brown, 449 F.3d 741 (6th Cir. 2006), also involved entry into a residence. There, an officer responded to a call from a security service after a residential burglar alarm sounded repeatedly. The officer found that the front door to the residence was locked, but the exterior basement door was ajar approximately twelve inches. There was no car in the driveway, and the officer did not find any broken or pried-open doors. The officer entered the residence because he thought a burglary might be in progress. Id. at 746. However, the officer did not know if the defendant previously had problems with his security system or false alarms. Id. The court stated that under the totality of the circumstances, the officer [*21] had probable cause to believe a burglary was in progress, justifying the warrantless entry. Id. at 750. The court noted that “the scope of the intrusion must be circumscribed by the exigencies that justified the warrantless search.” Id. at 745.

Here, the totality of the circumstances supports the trial court’s determination that the officers were engaged in the lawful performance of their duties and the court’s denial of P.B.P.’s motion to dismiss. The officers were in an open backyard area investigating a disturbance call when they observed circumstances that justified their contact with P.B.P. at the front door and then at the rear door. Notably, this case involves a limited entry into P.B.P.’s open backyard area and not an entry into or a search of the residence, a search of any fenced-in area of the property, or a search of P.B.P. The officers’ entry was appropriately limited based on the specific circumstances confronting them.

Finally, the dissent suggests that once the officers observed no one running through the backyards, they should have ended their investigation and left. We cannot agree. The officers responded to a disturbance call, and [*22] when they observed suspicious circumstances, they investigated using minimally intrusive means that were commensurate with the situation. The question of whether the officers were engaged in the lawful performance of their duties was for the trial court to determine as the trier of fact, based on the evidence. See Williams, 511 So. 2d at 742. Because the trial court did not err in finding that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal, we affirm.

Affirmed.

VILLANTI, J., Concurs.
KELLY, J., Concurs in part, dissents in part.

CONCUR BY: KELLY (In Part)

DISSENT BY: KELLY (In Part)

DISSENT: KELLY, Judge, Concurring in part, dissenting in part.

I cannot join the majority in affirming P.B.P.’s conviction for battery on a law enforcement officer because the State failed to prove an essential element of that offense-that Officer Bruce was engaged in the lawful performance of his legal duty when the battery occurred. n2 The trial court applied the wrong legal standard for determining the lawfulness of the officers’ actions, and the majority follows suit by approving Officer Bruce’s warrantless entry [*23] concluding it was “reasonable” but never finding that it was supported by exigent circumstances, the necessary prerequisite to a conclusion that the entry was reasonable under the Fourth Amendment.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n2 P.B.P. has argued that he was entitled to a judgment of dismissal as to each offense with which he was charged because the State failed to prove that the officers were engaged “in the lawful performance” of their duties, or “in the lawful execution of any legal duty” at the time the offenses occurred. See §§ 784.07, 843.01, 843.02, Fla. Stat. (2003). The supreme court has stated that although worded in a somewhat different way, these elements are “functionally identical.” Tillman v. State, 934 So. 2d 1263, 1266 n.2 (Fla. 2006).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

In Tillman v. State, 934 So. 2d 1263, 1271 (Fla. 2006), the supreme court explained that in evaluating the sufficiency of the evidence to reach the jury on the element of “lawful [*24] execution,” “courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Because the battery on Officer Bruce occurred during a warrantless entry into the backyard of P.B.P.’s home, the sufficiency of the evidence on the lawful execution element of battery on a law enforcement officer must be evaluated by applying Fourth Amendment law governing warrantless entry by police into a home. n3 See id.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n3 As the majority correctly acknowledges, the zone of protection under the Fourth Amendment extends to the curtilage of a home, including the backyard. See State v. Rickard, 420 So. 2d 303, 306 (Fla. 1982) (noting that courts will not allow a warrantless search or seizure in a constitutionally protected area such as one’s backyard); Glass v. State, 736 So. 2d 788 (Fla. 2d DCA 1999) (stating that officers were not justified in entering a backyard of a residence without consent, a warrant, or exigent circumstances).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [*25]

Under the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Brigham City v. Stuart, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). Because, however, “the ultimate touchstone” of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. Id. at 1947. The warrant requirement will give way when the ” ‘exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 393-94, 57 L. Ed. 2d 290 (1978)).

“The circumstances in which the Supreme Court has applied the exigent circumstances exception are ‘few in number and carefully delineated.’” Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005) (quoting United States v. U.S. District Court, 407 U.S. 297, 318, 32 L. Ed. 2d 752 (1972)). The Court has held that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, to pursue a fleeing felon, to prevent the destruction of [*26] evidence, or “to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Brigham City, 126 S. Ct. at 1947; see also Riggs, 918 So. 2d at 279 (cataloging the circumstances in which the Supreme Court has applied the exigent circumstances exception).

The trial court appears to have concluded that the officers’ intrusion was lawful because they were investigating an anonymous complaint regarding juveniles running through backyards in the neighborhood, they performed that investigation reasonably, and while doing so they encountered circumstances that “caused them to have a very reasonable suspicion and to be cautious and to go about their lawful performance of duties.” The State apparently recognizes that this reasoning does not justify the officers’ warrantless entry, n4 because on appeal the State argues for the first time that the entry was justified by exigent circumstances; specifically, that “the officers had at least reasonable suspicion, if not probable cause, to believe that a burglary was being committed in [P.B.P.'s] residence . . . . Under these circumstances, it was reasonable for an officer to [*27] enter and remain in the backyard until [P.B.P.'s] identity could be determined.”

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n4 In fairness to the trial court, the State offered no justification for the officers’ entry when this issue was argued in the trial court. In fairness to the State, it probably concluded justification was not an important issue because at that time the law in this district was such that the lawfulness of the officers’ actions was immaterial except with respect to the charge of opposing an officer without violence. See Tillman, 934 So. 2d at 1263 (rejecting the view held by this court and others that section 776.051(1), Florida Statutes (2003), which prohibits the use of force to resist an arrest notwithstanding the illegality of the officer’s actions, extends to other police-citizen encounters).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Although the Supreme Court has not addressed the issue, federal circuit courts that have considered the question have upheld warrantless searches conducted during burglary investigations under [*28] the rubric of exigent circumstances. See United States v. Johnson, 9 F.3d 506, 509 (6th Cir. 1993). Those courts have unanimously concluded that an officer may lawfully enter a residence without a warrant under the exigent circumstances exception when the officer reasonably believes a burglary is in progress. See United States v. McCullough, 457 F.3d 1150, 1164 (10th Cir. 2006). Florida’s courts have reached the same conclusion. See, e.g., Zakrzewski v. State, 866 So. 2d 688 (Fla. 2003); Davis v. State, 834 So. 2d 322 (Fla. 5th DCA 2003); State v. Mann, 440 So. 2d 406, 408 (Fla. 4th DCA 1983).

The argument that the officers’ entry was justified as part of a burglary investigation is flawed in several respects, not the least of which is that it overlooks the fact that the officers’ initial entry into a constitutionally protected area had nothing to do with a suspected burglary of P.B.P.’s home. Initially, the officers entered the backyard of a home two houses north of P.B.P.’s home. They did so after being dispatched to that address to investigate a complaint of juveniles running through backyards. [*29] The officers did not happen upon the “suspicious circumstances” until after they entered the backyard of that house and began a house-to-house backyard search eventually reaching P.B.P.’s yard. However, the determination of whether a warrantless entry was lawful is based on what the officers knew at the time of entry. See Seibert v. State, 923 So. 2d 460 (Fla. 2006).

At the time of entry, the officers had no information beyond the fact that someone had called to report juveniles running through backyards. They were not investigating a possible burglary. The majority opinion’s citation to A.E.R., Duda, and J.B. suggests that the majority has concluded that the initial entry to investigate this complaint was an emergency that not only required an immediate entry into the backyard of the home where the call originated, but a house-to-house search of the neighbors’ backyards as well. The distinction between the facts in this case and the facts in the cases cited by the majority is self-evident.

In A.E.R., the officers were investigating a “neighborhood complaint” that juveniles had been “pool hopping.” 464 So. 2d at 152. The officers [*30] did not arrive and start searching backyards to locate the offending juveniles. They went to the home where the complaint originated and spoke to the complaining party who pointed to A.E.R.’s house as the one where the juveniles lived. It was not until after the officers approached the front of that house and saw the juveniles’ apparent attempt to flee out the back door that the officers ran to the back. As they did so, one officer observed a juvenile carrying a marijuana plant that the officers later confiscated.

A.E.R. sought to have the plant suppressed arguing the officer had no right to be in the side yard, and thus the seizure of the plant could not be sustained under the plain view doctrine. Id. This court framed the issue as whether “pursuant to a neighborhood trespassing complaint, officers, without a warrant, may lawfully enter the side yard of appellant’s home in an effort to question suspected misdemeanants when the officers believe, after observing the suspects inside the home, that they are eluding the officers.” Id. at 153. We first acknowledged the principle that officers investigating a neighborhood complaint may investigate by knocking on an [*31] individual’s front door, where the individual has no expectation of privacy. This court then concluded that the juveniles’ apparent attempt to flee out the back door, which the officers witnessed from the front of the house, created exigent circumstances requiring “immediate action” on the part of the officers. Id. at 154.

In Duda, the officers were responding to a call regarding a domestic disturbance or a possible fight at a residence. 437 So. 2d at 794. When they arrived they heard shouting coming from the rear of the home and the backyard. Recognizing that the police have a right to enter and investigate when they reasonably believe they are confronted with an emergency situation, this court specifically found that the officers were faced with a “potential emergency situation” and thus were justified in going immediately to where they believed the disturbance was taking place. Id. at 796.

In In re J.B., the officers were responding to a home that was the source of a 911 call. 621 So. 2d at 489. When the call came in, the caller hung up without speaking or requesting assistance. The system dispatched an officer [*32] to the home to investigate the call. In finding that the officers acted lawfully in trying to enter the home, the court analogized a 911 call to “screams for help.” Id. at 491. The court also discussed the fact that the 911 system is used to report crimes and injuries requiring immediate assistance and that “a disconnect” could happen for “a myriad” of reasons and did not mean the emergency was over. Given that a 911 call is “a cry to the authorities for help,” the court concluded that an investigating officer has a duty to investigate until he is satisfied no emergency exists. Id.

Although the cases cited by the majority are clearly distinguishable, even assuming arguendo that the officers’ initial entry to investigate the disturbance was justified, the officers were not entitled to remain behind the homes once they determined that no one was back there because any search conducted under the auspices of exigent circumstances must be “strictly circumscribed by the exigencies which justify its initiation.” Mincey, 437 U.S. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 20 L. Ed. 2d 889 (1968)); see also Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005) [*33] (explaining that when a warrantless search is based on exigent circumstances, an officer must cease the search once he determines that no emergency exists). In other words, once the officers realized that no one was running through backyards, they no longer had a reason to remain behind the houses, much less conduct a yard-to-yard search.

The reasonableness of this course of conduct-leaving after determining that no one was behind the homes-is evidenced by the actions of Officer Larose. Officer Larose testified that he first went into the backyard of a home across the street from P.B.P.’s home because he thought he heard voices coming from that area. Using his flashlight, he was able to see several backyards from his initial vantage point. Seeing no one behind those houses, he walked back out to the street. In contrast, neither Officer Perrone nor Officer Bruce offered any justification for their decision to remain behind the homes on P.B.P.’s side of the street although, like Officer Larose, they saw no one behind the homes. Thus, even if they were justified in going immediately into the backyard of the home where the complaint originated, their continued presence behind the homes [*34] was unauthorized, and the “suspicious circumstances” they observed as they approached or entered P.B.P.’s yard cannot provide an after-the-fact justification for their actions up to that point. See, e.g., Olivera v. State, 315 So. 2d 487 (Fla. 2d DCA 1975) (explaining that observations made by an officer from a location where he had no right to be are tainted and cannot be used to support the State’s position that the officer had probable cause to search or arrest); cf. Davis, 834 So. 2d at 327 (explaining that any search conducted after the exigency no longer exists is illegal and any contraband observed pursuant to the illegal search is inadmissible).

Even taking the “suspicious circumstances” into account, to justify a warrantless entry based on the belief that a burglary is in progress, the police must have probable cause to believe that a burglary is occurring, not simply a mere suspicion. See, e.g., McCullough, 457 F.3d at 1164; United States v. Brown, 449 F.3d 741, 748 (6th Cir. 2006); United States v. McClain, 444 F.3d 556 (6th Cir. 2005); United States v. Johnson, 9 F.3d at 509; [*35] Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980). In this context,

[p]robable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion. Under this “flexible, common-sense standard,” the establishment of probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. However, the “mere possibility” that a crime could be occurring within a home is not sufficient to justify a warrantless search; the police must have an objectively reasonable basis for their belief that a crime is being committed. Likewise, mere speculation that a crime could be occurring is insufficient to establish probable cause.

McClain, 444 F.3d at 562-63 (citations and some internal quotation marks omitted). The trial court made no determination that the officers had probable cause to believe that a burglary was in progress. While the majority alludes to the possibility of a burglary, it stops short of saying that the officers had probable cause to believe a burglary was in progress.

Nor would the record support that [*36] conclusion. The record shows that the officers were not responding to a reported burglary and that no alarm had been reported. They did not see any signs of forced entry such as a broken window or a door with pry marks-only a screen propped up next to a second floor window. They did not see any open doors, and when they knocked on the front door, the occupant answered the door and agreed to produce identification. While the trial court notes that the officers saw someone peering out a rear window and that someone tried to hide when the officers shined a light in through a rear window of the home, this hardly seems unusual considering it was three o’clock in the morning and the occupants had no idea the police were roaming through their backyard, nor any indication that police flashlights were the source of the light being shone into the house. In light of all these circumstances, I cannot conclude that the officers had anything more than a mere suspicion that a crime could be occurring. Compare McCullough, 457 F.3d at 1164 (noting that the security alarm at the residence had been triggered, the people at the residence were dirty, did not have any identification, were [*37] admittedly not the homeowners, did not know the name of the homeowners, were acting in a nervous manner, and one of them, who was observed leaving the residence, did not attempt to speak to the officer and appeared disoriented); Brown, 449 F.3d at 746 (noting that the officer had responded to a burglar alarm that had been triggered twice in a short period of time, he had gotten no response from inside the house, there was no car in the driveway, and the front door was secure but the back door, which had triggered the alarm, was ajar); Johnson, 9 F.3d at 507 (noting that the officers were responding to a call from a neighbor reporting a burglary in progress, that the neighbor reported seeing individuals crawl through a broken window in the home, that the door to the home was locked but a woman and a man were in the house, the man and the woman claimed to live there but could not open the door because they did not have a key, and they had no identification).

Moreover, even if the officers’ observations justified having Officer Bruce remain behind the houses to watch the back door while Officer Perrone went to P.B.P.’s front door, they certainly did [*38] not justify the actions Officer Bruce took when P.B.P. appeared at the back door. Officer Bruce testified that when P.B.P. opened the rear sliding glass door and saw him, P.B.P. told him to leave the property. Rather than simply maintaining his position, which the majority suggests may have been outside P.B.P.’s yard, Officer Bruce testified that he entered the yard, walked across the patio area and “went up to him, approached him, was at a bladed stance, he was standing inside of the door, sliding glass doors.” Officer Bruce repeatedly asked P.B.P. for identification, but P.B.P. refused to provide it at the back door. Instead, he told Officer Bruce to leave and meet him at the front door where the other officer was awaiting his return. When Officer Bruce refused to leave, P.B.P. pushed him.

Officer Bruce acknowledged that when he entered P.B.P.’s property and came into contact with P.B.P., he did not have permission to be on the property and he had not seen anything illegal occurring on the property. Although he did not explain why he had stayed behind when Officer Perrone went to the front door, he presumably did so to ensure that no one left through the back door of P.B.P.’s home. [*39] To accomplish this task, Officer Bruce did not need to come onto P.B.P.’s patio and stand three feet away from him. He could have remained where he had been standing when he first joined Officer Perrone behind the house. This would have placed him outside of P.B.P.’s backyard but still close enough to observe the back of the house. Because Officer Bruce entered a constitutionally protected area without a warrant and without exigent circumstances his entry was not “reasonable” under the Fourth Amendment. When the battery occurred he was not engaged in the “lawful performance” of his duties because his entry violated the Fourth Amendment. Accordingly, P.B.P. was entitled to a judgment of dismissal on the charge of battery on a law enforcement officer.

The charges of obstructing or opposing an officer with violence and without violence stem from what happened next, and as was the case with the battery, we must determine the lawfulness of the officers’ actions when these offenses occurred. See Tillman, 934 So. 2d at 1273. Officer Perrone, who had been waiting at the front door and had been joined by Officer Larose, heard shouting and Officer Bruce loudly yelling commands. [*40] Officer Bruce testified that he used a “command voice” to tell P.B.P. not to touch him and that it was battery on a law enforcement officer. When Officer Perrone went to the back of the house he saw P.B.P. “very close to Officer Bruce’s face, screaming at him verbally, that he wasn’t getting him shit and told him to get the fuck off his property.” Officer Perrone did not see P.B.P. strike Officer Bruce, nor did he see P.B.P. “do anything illegal” up to the point that Officer Perrone approached P.B.P., “put hands on him” and “put him in an escort position” to “pull him out of the house.” At that point P.B.P. began to kick, throw punches, and push until he “broke loose” and ran away, ignoring commands to stop.

When Officer Perrone heard Officer Bruce shouting, P.B.P. had gone into the house and closed the door. Thus, Officer Perrone had no way to know where P.B.P. was at that moment. That uncertainty paired with hearing Officer Bruce loudly commanding someone not to touch him and stating that it was battery on a law enforcement officer was enough to make it reasonable for Officer Perrone to enter the backyard to ascertain whether Officer Bruce was in need of his assistance. See Brigham City, 126 S. Ct. at 1947 [*41] (“Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”). At this point, Officer Perrone was acting lawfully when he entered the backyard to investigate.

Thus, the question becomes whether Officer Perrone was acting lawfully when he grabbed P.B.P. and pulled him out of the house. Section 901.151(2), Florida Statutes (2004), which governs detentions, provides:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

This statute is consistent with the holding in Terry, 392 U.S. at 21, [*42] which requires “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Given what he had heard and witnessed, it was reasonable for Officer Perrone to conclude that P.B.P. had, or was about to commit a felony, battery on a law enforcement officer. Accordingly, he was acting lawfully when he detained P.B.P. Because it was this lawful action by Officer Perrone that precipitated the events leading to the charges of obstructing or opposing an officer with and without violence, I concur with the majority that P.B.P. was not entitled to a judgment of dismissal on those charges.

Courtesy of David Edelstein

LUIS PEREZ-ORTIZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1383

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Lisa T. Munyon, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   Ira W. Still, III, Coral Springs, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   LAWSON, J. TORPY and EVANDER, JJ., concur.

OPINION BY:   LAWSON

OPINION:   LAWSON, J.

Luis Perez-Ortiz appeals his conviction and life sentence on the charge of first degree (premeditated) murder, for killing his wife. He argues that the trial court erred in denying the motion to suppress his confession, and that the State’s evidence at trial was insufficient to create a jury question on the issue of premeditation. We affirm.

Nilda Corsino was last seen by neighbors arriving at her apartment on the evening of March 31, 2004. When she did not show up for work the next day, family members contacted police, who ultimately discovered her dead body lying face-down in an inch of water in a tub inside her apartment. Corsino was fully clothed and had a bruise on her jaw, as well as readily-apparent marks around her neck. An autopsy later confirmed that Corsino died from manual strangulation with a contributing factor of immersion  [*2]  in scalding hot water.

Corsino’s body was discovered at around 10:00 p.m. on April 1, 2004. At the time of her death, she had been separated from the Defendant. He was residing with his mother. By the time the investigating officers determined where Defendant was residing, it was early on the morning of April 2. So, at approximately 4:00 a.m., on April 2, detectives Santos and Lee, from the Orange County Sheriff’s Office, arrived at the home of Defendant’s mother to notify Defendant of the death of his wife. Upon their arrival, Santos and Lee found Defendant dressed in street clothes, with a turtle-neck shirt pulled up on his neck as high as possible. Visible above the shirt’s neckline, however, they could see fresh scratches on Defendant’s neck and face. Although the scratches were suspicious, and the detectives considered Defendant to be a suspect, they had no other evidence linking Defendant to Corsino’s death, and clearly did not have any basis to detain or arrest him.

Therefore, they asked Defendant if he would voluntarily meet them for questioning. He agreed, and drove himself to the nearby Oviedo police station. Both before and during the video-taped interview, the detectives  [*3]  confirmed to Defendant that he was at the station voluntarily, and could leave if he chose to do so. The interview began in a friendly tone, and the detectives’ friendly demeanor never changed. However, the detectives’ questions did become accusatory as their interrogation proceeded. Basically, they said or implied that they knew Defendant was involved in Corsino’s killing, and used various emotional pleas to secure his confession (repeatedly calling upon him to “do the right thing” in the name of truth, virtue, religion, his upbringing, and for the sake of his son).

Defendant initially denied even being at the apartment when Corsino was killed. Then, he began to sit silently as the detectives speculated about what happened on the night of Corsino’s death, and pressured him to confess (again, using only the psychological tool of moral persuasion). Shortly before admitting his guilt, Defendant asked if he could “talk to a lawyer, please?” Immediately, detective Lee told Defendant that this would “end the communication between us,” but again told him that: “You’re free to go, you don’t have to talk to us. You know, you’re not under arrest. That is your option.” Defendant responded by  [*4]  simply saying: “I didn’t do it. We had a bad fight, but I didn’t do it.” Shortly thereafter, Defendant again asked if he could talk to a lawyer, and Lee once again clearly asked Defendant if he wanted to leave. When Defendant didn’t indicate a desire to leave or terminate the interrogation, Lee responded with: “Can I ask you something? What’s keeping you from trusting us enough to tell us the truth tonight?” The interview continued, and the Defendant ultimately confessed to killing his wife.

Motion To Suppress Confession

Prior to trial, Defendant filed a motion to suppress his confession, claiming that the detectives violated his Fifth Amendment right to counsel, as outlined in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), by failing to discontinue the interview immediately upon his request for a lawyer. In making this argument, Defendant inaccurately represents that the Fifth Amendment requires a law enforcement officer to immediately cease any questioning of a suspect in response to a clear request for an attorney, in any setting. Contrary to Defendant’s argument, the Fifth Amendment “right to counsel” is a procedural safeguard created by Miranda  [*5]  to secure the Fifth Amendment’s right against compelled self-incrimination during custodial interrogations. Id. at 444. The Miranda right-to-counsel safeguard simply does not apply outside the context of a custodial interrogation. Id.; Sapp v. State, 690 So. 2d 581, 585 (Fla. 1997).

We have carefully considered the factors outlined in Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999), and agree with the trial court’s conclusion that the Defendant was not in custody at any time during the interrogation. Most significantly, the Defendant voluntarily agreed to drive himself to the police station, and was repeatedly told that he was not under arrest and free to leave at any time. n1 Given the totality of the circumstances, we find that a reasonable person placed in the same position could not have believed that his or her freedom of action was curtailed to a degree associated with actual arrest. Therefore, we conclude that Defendant was never in custody, see Ramirez, 739 So. 2d at 573, and that the Miranda safeguards, including the right to counsel, did not apply. Sapp, 690 So. 2d at 585.  [*6]

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 When the interview was over, Defendant also drove himself back to his mother’s house. The detectives arrested him later in the day, after securing an arrest warrant.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Sufficiency of Circumstantial Evidence To Prove Premeditation

Defendant also argues that the trial court erred in denying his timely motion for judgment of acquittal as to the charge of first degree murder because the State’s evidence was insufficient to prove premeditation. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind for a sufficient length of time to permit reflection. Johnston v. State, 863 So. 2d 271, 285 (Fla. 2003), cert. denied, 541 U.S. 946, 158 L. Ed. 2d 372 (2004). When there is no direct evidence of premeditation, the evidence relied upon by the state to prove premeditation must be inconsistent with any reasonable inference other than that the accused killed his or her victim pursuant to a conscious purpose, formed with sufficient time for reflection.  [*7]  Id.

Because of the time necessary to kill another human by manual strangulation, the circumstance of killing by strangulation alone is deemed sufficient to create a jury question on the issue of premeditation in at least a few jurisdictions. See, e.g., Hounshell v. State, 61 Md. App. 364, 486 A.2d 789 (Md. Ct. Spec. App.), (“Whether the time required to produce death by strangulation is sufficient for the assailant to reflect upon his actions before death ensues is a matter for the jury to determine.”) cert. denied, 303 Md. 42, 491 A.2d 1197 (Md. 1985); Houck v. State, 563 P.2d 665, 668 (Okla. Crim. App. 1977) (finding the fact that strangulation took several minutes to cause the victim’s death sufficient to raise an inference of premeditation); cf. State v. Sturdivan, 497 S.W.2d 139, 142 (Mo. 1973) (“Premeditation may be reasonably inferred from the bare hand strangulation of defendant’s victim and the subsequent application of the towel for two or three minutes longer to make sure he was dead.”); but see State v. Bingham, 105 Wn.2d 820, 719 P.2d 109, 113 (Wash. 1986) (rejecting rule that strangulation  [*8]  alone is sufficient to create a jury question on premeditation, reasoning that having “the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation”).

Although our Supreme Court has not expressly addressed this issue, its rulings in several cases lead to the inescapable conclusion that, in Florida, the length of time necessary to produce death by strangulation, standing alone, is not a sufficient basis to submit the issue of premeditation to a jury. See, e.g., Randall v. State, 760 So. 2d 892 (Fla. 2000) (finding insufficient evidence of premeditation to uphold conviction for first degree murder in manual strangulation case); Green v. State, 715 So. 2d 940 (Fla. 1998) (same).

Ms. Corsino, however, did not simply die from strangulation. After being strangled, but while still breathing, she was drowned in an inch of water, in her tub. The only reasonable inference to be drawn from this evidence is that Defendant, after strangling Ms. Corsino, either held her face into the water, or placed her face-down in the water while she was unconscious. Given the time and forethought that would have  [*9]  been required to prepare the water, or even move the victim into it, after strangling her, we find the evidence sufficient to support a conviction for first degree murder.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

Courtesy of David Edelstein

RICARDO BAILEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-3288

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Thomas W. Turner, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, C.J., ORFINGER and EVANDER, JJ., concur.

OPINION:   PER CURIAM.

We agree that the trial court improperly sustained certain hearsay objections. However, such errors were harmless because the witness was later able to testify to those matters which had initially been wrongfully excluded. Wallace v. State, 766 So. 2d 364, 371-72 (Fla. 3d DCA 2000); see also Turner v. State, 809 So. 2d 59, 62 (Fla. 5th DCA 2002).

AFFIRMED.

PLEUS, C.J., ORFINGER and EVANDER, JJ., concur.

Courtesy of David Edelstein

JAMES HARPER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3668

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Reginald K. Whitehead, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James Harper, Orlando, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   TORPY, J. GRIFFIN and SAWAYA, JJ., concur.

OPINION BY:   TORPY

OPINION:   TORPY, J.

Appellant challenges the lower court’s order that summarily denied his petition for habeas corpus on procedural grounds. Although we do not agree that Appellant’s petition was procedurally barred, we nevertheless affirm because the petition is without merit. See Smith v. State, 782 So. 2d 955 (Fla. 1st DCA 2001) (habeas petition not procedurally barred because raises issue that may be raised at any time).

Appellant alleges that his conviction for a probation violation was improper because the conviction was solely based upon alleged violations that were the subject of an amended affidavit that was first filed after his term of probation had expired, contrary to the holding in State v. Hall, 641 So. 2d 403 (Fla. 1994). Since that decision, however, section 948.06, Florida Statutes, has been amended  [*2]  to include a provision tolling the probationary period upon the filing of an affidavit alleging a violation of probation and expressly conferring continuing jurisdiction on the trial court to address “any violation . . . that is alleged to have occurred during the tolling period.” Appellant acknowledges this statutory change but urges that it may not be applied to him because to do so violates the constitutional prohibition against ex post facto laws, citing Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004). We disagree and distinguish Frye.

In Frye, the defendant had been placed on probation before the statute was changed. The court held that the statutory change could not be applied to him under the ex post facto clause. Id. at 420. Here, by contrast, although the underlying offense for which Appellant was placed on probation is alleged to have occurred before the statutory change, Appellant was not placed on probation until well after the statutory change. Under these circumstances, the ex post facto clause is clearly not implicated. See Gwong v. Singletary, 683 So. 2d 109 (Fla. 1996) (test for statutory scrutiny  [*3]  under the ex post facto clause is whether the law is retrospective in effect and whether it alters the elements of the crime or increases the potential punishment).

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

Courtesy of David Edelstein

CHARLES HAYES, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1749

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, Daniel P. Dawson, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   MONACO, J. PALMER and ORFINGER, JJ., concur.

OPINION BY:   MONACO

OPINION:   MONACO, J.

Charles Hayes appeals from the judgment and sentence rendered by the trial court after his conviction of sexual battery by a person over 18 upon a person less than 12 years of age in violation of section 794.011(2), Florida Statutes (2006), and lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2006). He raises as the sole issue on this appeal whether the trial court erred in denying his motion to strike the venire. We affirm on two bases.

First, we find no error on the merits with respect to the trial court’s decision not to strike the entire venire. A venire member’s expression of an opinion stated during a voir dire examination, without more, is ordinarily not considered sufficient  [*2]  to taint the remainder of the panel. See Johnson v. State, 903 So. 2d 888, 897 (Fla.), cert. denied, 126 S. Ct. 802, 546 U.S. 1064, 163 L.Ed.2d 632 (2005); Brower v. State, 727 So. 2d 1026, 1027 (Fla. 4th DCA), review denied, 744 So. 2d 452 (Fla. 1999). With the exception of one venire person who did not sit on the jury, the remainder of the venire said that the questioned comments of the venire person would not affect their perception of Mr. Hayes.

Second, we conclude that Mr. Hayes failed to preserve this issue for review. Although Mr. Hayes did not formally accept the jury panel, he failed to renew his objection or motion to strike the panel prior to the jury being sworn in. We held in Martin v. State, 816 So. 2d 187, 188 (Fla. 5th DCA 2002), that jury selection issues are “deemed to be waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objection.” See also Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993).

Here, after the jury was selected the court recessed for the night. When asked on the following morning prior to the jury being sworn whether  [*3]  there was anything else that either the State or the defense wished to say, the defense responded, “No.” The jury was then sworn. The case law teaches that even if a litigant makes no statement affirmatively accepting a jury, the requirement remains that objections to the panel must be renewed. See Lavin v. State, 754 So. 2d 784, 786 (Fla. 3d DCA 2000); Milstein v. Mutual Sec. Life Ins. Co., 705 So. 2d 639, 641 (Fla. 3d DCA 1998). In our judgment the issue was waived when the objection was not renewed prior to the swearing of the jury.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

Courtesy of David Edelstein

ERIC CORNELIUS KNIGHT, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3263

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

April 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge.

DISPOSITION:   REMANDED for Correction of Scriveners’ Errors.

COUNSEL:   James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   ORFINGER, MONACO and EVANDER, JJ., concur.

OPINION:   PER CURIAM.

Both Knight and the State agree that the two written orders of revocation appear to contain a scriveners’ error. Specifically, the trial court verbally pronounced that Knight had violated Conditions (1) and (8) of his probation, but had not violated Condition (3). However, the written orders of revocation provide that Knight had violated Conditions (1), (3) and (8). It is well-established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001).

We remand this cause solely for the purpose of enabling the trial court to enter written orders of revocation, nunc pro tunc, in accordance with its oral pronouncement. Knight  [*2]  does not need to be present. Mosco v. State, 640 So. 2d 1219 (Fla. 5th DCA 1994).

REMANDED for Correction of Scriveners’ Errors.

ORFINGER, MONACO and EVANDER, JJ., concur.

Courtesy of David Edelstein

I.M., A Child, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6322

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

April 26, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:   An appeal from the circuit court for Duval County. A. C. Soud, Jr., Judge.

DISPOSITION:   We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing. REVERSED and REMANDED, with directions.

COUNSEL:   Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   ALLEN, WEBSTER, and BENTON, JJ., CONCUR.

OPINION:   PER CURIAM.

In this juvenile delinquency case, appellant challenges a restitution order, contending that the trial court erred (1) in holding a restitution hearing in appellant’s absence and (2) ordering restitution without determining the amount appellant might reasonably be expected to pay. We agree and, accordingly, reverse the restitution order and remand for a new restitution hearing.

Appellant was absent from one hearing during which, over an objection by appellant’s counsel, the trial court heard testimony and determined the amount of restitution. A juvenile has a constitutional  [*2]  right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right. E.g., M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So. 2d 1233, 1234-35 (Fla. 2d DCA 2005); J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994). Because appellant was not present and there is nothing to suggest a voluntary and intelligent waiver, he is entitled to a new restitution hearing. See M.W.G., 945 So. 2d at 600; T.A.S., 892 So. 2d at 1235.

The trial court ordered the future payment of restitution without allowing appellant to present evidence as to his future ability to pay or making an express finding regarding future ability to pay. This, too, was error. While a court may order an unemployed or incarcerated delinquent child to pay restitution without a showing of present ability to pay, it must determine what the child might reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those anticipated earnings. E.g., M.W.G., 945 So. 2d at 601; R.D.S. v. State, 844 So. 2d 720, 720-21 (Fla. 2d DCA 2003);  [*3]  A.J. v. State, 677 So. 2d 935, 938 (Fla. 4th DCA 1996); J.A.M. v. State, 601 So. 2d 278 (Fla. 1st DCA 1992); J.M.H. v. State, 589 So. 2d 394, 395-96 (Fla. 1st DCA 1991).

We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., CONCUR.

Courtesy of David Edelstein

JAMAL CHE GLENN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-0765

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

April 26, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:   An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.

DISPOSITION:   REVERSED and REMANDED.

COUNSEL:   Jamal Che Glenn, Pro se, Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   THOMAS, J. KAHN and HAWKES, JJ., CONCUR.

OPINION BY:   THOMAS

OPINION:   THOMAS, J.

Appellant appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. In light of the 2006 change in Florida law, we reverse.

On October 2, 1998, Appellant pled guilty to first-degree murder and robbery. Appellant filed a rule 3.853 motion seeking DNA testing of evidence collected during the investigation of the crimes, including samples from the victim’s clothing and personal effects, fibers, nail scrapings, and “other minuscule debris,” as well as hair samples. Appellant’s motion is facially sufficient, alleging that he is innocent, that identity was a material issue at trial, that no DNA testing of the relevant evidence occurred, and that DNA testing will exonerate  [*2]  him. See 925.11(2), Fla. Stat. (2006).

The trial court denied Appellant’s motion, relying on language in section 925.11(1)(a), Florida Statutes (2005), which limits the right to file rule 3.853 motions to those who have been tried and found guilty of a felony, and effectively excludes those who entered a guilty or nolo contendere plea to such crimes. However, section 925.11(1)(a)2. was amended in 2006 to allow for postconviction DNA testing in cases where the defendant enters a plea of guilty or nolo contendere to a felony. See § 925.11(1), Fla. Stat. (2006); Lindsey v. State, 936 So. 2d 1213 (Fla. 5th DCA 2006). Section 925.11(1)(a)2., Florida Statutes (2006), provides:

A person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that  [*3]  person.

Courts must first look to the plain language of a statute when construing its meaning. See Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005). When the language is clear and unambiguous, there is no room for statutory interpretation or judicial construction. Id.; State v. Jett, 626 So. 2d 691, 692 (Fla. 1993).

The language of section 925.11(1)(a)2. is clear and extends the right to file a motion for postconviction DNA testing not only to those who entered a guilty or nolo contendere plea after the change in the law, but also includes those who entered a plea to a felony before July 1, 2006. Because Appellant filed a facially sufficient motion for postconviction DNA testing, his motion cannot be denied solely on the basis of his 1998 plea.

In response to this court’s order to show cause why this case should not be remanded, the State argues that Appellant failed to meet his burden of justifying his delay in seeking DNA testing and failed to provide an explanation as to why the evidence at issue was not tested at the time his plea was entered. Specifically, the State argues that Appellant failed to explain the seven-year gap between  [*4]  his conviction and the filing of his rule 3.853 motion, and failed to offer facts that justified such a delay.

In support of its argument, the State cites Hitchcock v. State, 866 So. 2d 23 (Fla. 2004). The State, however, incorrectly interprets the language of the supreme court’s opinion. The State appears to argue that because the court in Hitchcock determined that the intent of rule 3.853 is to provide an opportunity for DNA testing of evidence not previously tested, or of evidence previously tested but with inconclusive results and subsequent developments in testing techniques would provide a definitive result, the defendant bears the burden of explaining and justifying why DNA testing of the evidence at issue was not sought before the postconviction stage of the proceedings. However, nothing in Hitchcock indicates that the court intended to place the burden on the defendant to make such explanations and justifications; rather, the court found that the allegations were inadequate on the merits. Further, nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant. Finally, in light  [*5]  of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred. As such, we find the State’s argument and reliance on Hitchcock unpersuasive.

In light of the plain language of section 925.11(1)(a)2., Florida Statutes (2006), this case must be remanded. Accordingly, we reverse the trial court’s summary denial of Appellant’s rule 3.853 motion and remand to the trial court to address the merits of Appellant’s petition pursuant to sections 925.11(2)(c)-(f), Florida Statutes (2006).

REVERSED and REMANDED.

KAHN and HAWKES, JJ., CONCUR.

Courtesy of David Edelstein