Florida Criminal Law Opinions

JAMES ALONZO BROOKS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3794.

District Court of Appeal of Florida, Second District.

Opinion filed November 18, 2009.

Appeal from the Circuit Court for Hillsborough County; Daniel Sleet, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

James Alonzo Brooks appeals his convictions and sentences for burglary of an unoccupied structure, possession of burglary tools, and grand theft. We affirm without discussion the convictions and sentences for burglary of an unoccupied

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structure and grand theft. We write to reverse the conviction and sentence for possession of burglary tools.

The victim of the burglary saw Brooks walking a bicycle along the fence line of the victim’s property early in the morning. The victim called 911 to report a suspicious person around his home. About ten minutes later, the victim went into his backyard and saw Brooks flee from the victim’s open shed. Brooks jumped the fence and happened to run toward an officer who was responding to the 911 call. Brooks was wearing gloves, and he had a flashlight on his person. Power tools that had been in the shed had been moved outside the shed. The bicycle was found outside the victim’s fence. Other property from the shed was next to the bicycle, along with a crowbar. Brooks contends that the evidence was insufficient to prove a prima facie case of possession of burglary tools.

To support a conviction for possession of burglary tools, the State must prove that the defendant had “in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass.” § 810.06, Fla. Stat. (2007). Brooks is correct that gloves are not burglary tools under section 810.06. See Green v. State, 604 So. 2d 471, 473 (Fla. 1992) (concluding “that items of personal apparel, such as common gloves, are not included under the terms `tool, machine, or implement’ as used in section 810.06″). Thus, the evidence that Brooks was wearing gloves cannot support his conviction for possession of burglary tools.

With respect to the flashlight found on Brooks’ person, the State failed to prove his intent to use it to commit burglary. “`Where a person is accused of

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possessing “burglary” tools, the state must prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime.’” Keys v. State, 949 So. 2d 1080, 1083 (Fla. 2d DCA 2007) (quoting Thomas v. State, 531 So. 2d 708, 709 (Fla. 1988)). In Keys, this court determined that the evidence was sufficient to show the defendant’s intent to use deck spikes found in his possession to burglarize a mobile home when the door to the mobile home had fresh pry marks on it. Id.

In Latimore v. State, 753 So. 2d 690, 691 (Fla. 4th DCA 2000), the defendant was seen, in the nighttime, trying to remove a radio from the dashboard of a vehicle. Similar to the present case, when he was later arrested and searched, the police discovered a flashlight on the defendant’s person. The Fourth District determined that the evidence was insufficient to support a conviction for possession of burglary tools because the evidence of intent to use the flashlight to commit the burglary was lacking. Id. at 692. The court explained that the defendant “was never even seen with the flashlight in his hand at all. It was merely found on his person when he was arrested.” Id. Here, the evidence to show Brooks’ intent to use the flashlight to commit the burglary was similarly lacking. Thus, his possession of the flashlight cannot support his conviction for possession of burglary tools.

The State contends that a crowbar found next to the bicycle supports Brooks’ conviction for possession of burglary tools, citing C.W. v. State, 778 So. 2d 358 (Fla. 2d DCA 2001). The State argues that “the jury could reasonably infer Brooks’ use of the crowbar with the intent to commit a burglary.” In C.W., however, the juvenile

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broke into a school using a crowbar. He admitted to using the crowbar to break into the school, the doors had pry marks on them, and police found a crowbar inside the school. Id. at 359.

In contrast, the only evidence here is that a crowbar was found outside the fence and next to the bicycle. No evidence shows Brooks’ intent to use the crowbar, especially when the crowbar was unnecessary to enter the open shed and the evidence reflected that Brooks climbed the fence to enter the property. As with the flashlight, mere possession of the crowbar does not constitute a crime. See Thomas, 531 So. 2d at 709. Therefore, because the State failed to prove Brooks’ intent, we reverse his conviction and sentence for possession of burglary tools.

Affirmed in part and reversed in part.

FULMER and NORTHCUTT, JJ., Concur.

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

Courtesy of David Edelstein

Manuel Lena, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2455

District Court of Appeal of Florida, Third District

Opinion filed November 18, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge. Lower Tribunal No. 01-28177.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

SUAREZ, J.

Manuel Lena appeals from the trial court’s summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on

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three (3) counts of Sexual Battery on a Child Less than Twelve, and two (2) counts of Lewd and Lascivious Molestation of a Child. We affirm on grounds two through seven, nine through eighteen, twenty, twenty-three, and twenty-five through twenty-nine. For the following reasons, we remand grounds eight and nineteen for proper record attachment, and reverse grounds twenty-one and twenty-two so that the defendant is afforded the opportunity to amend his motion.

Lena raised twenty-nine (29) counts of ineffective assistance of counsel. The trial court denied all grounds. The trial court found grounds two through six, and twenty, were preserved for purposes of direct appeal and had already been appealed. Grounds seven through nine were preserved on the record, and they were the basis of the direct appeal, which had already been ruled on by this Court. Ground ten was preserved on the record and should have been raised on direct appeal. Grounds eleven and twelve failed to show how Lena was prejudiced and how the outcome of the case would have been different. Ground thirteen failed to demonstrate some basis of fact as well as prejudice in the outcome. Grounds fourteen through sixteen failed to show how Lena was prejudiced and how the outcome of the case would have been different. Ground seventeen was found to have no factual verity, and ground eighteen was preserved on the record and should have been argued on direct appeal.

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Ground nineteen was preserved on the record and should have been brought up on direct appeal. Ground twenty was litigated in an extensive pre-trial evidentiary hearing, and was already appealed to this Court. The trial court found the issues were preserved for purposes of direct appeal. Grounds twenty-one and twenty-two failed to provide a legal basis under which such testimony would be deemed admissible under the Florida Rules of Evidence. Ground twenty-three did not demonstrate any prejudice. Ground twenty-four was preserved and should have been brought up on appeal. Ground twenty-five was conclusively refuted by the record; therefore, Lena failed to state a basis for relief. Grounds twenty-six through twenty-nine failed to show how Lena was prejudiced and how the outcome of the case would have been different.

We agree with the trial court’s assessment of the issues presented. Grounds eight and nineteen, however, are remanded to the trial court for proper record attachment. The State concedes that the proper record for ground eight should have been Ms. Rodriguez’s cross-examination at pages 259-60 of the record, and that the proper record for ground nineteen should have been Exhibit “J,” which contains Ms. Silverman’s testimony.

We review grounds twenty-one and twenty-two under the abuse of discretion standard. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). The trial court held that Lena failed to provide a legal basis under which certain testimony

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would be deemed admissible under the Florida Rules of Evidence. It then found that Lena could not show how his counsel was ineffective based on the allegations in the motion. The Supreme Court of Florida, however, held “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Spera, 971 So. 2d at 761. This decision focused on facially insufficient motions. Id. at 762. The Court also found, however, that if a trial court denies relief because there is conclusive evidence in the record that refutes the allegations, the trial court does not have to permit amendments to the pleadings. Id. This was Lena’s first postconviction motion under Rule 3.850, and the record does not conclusively refute the allegations contained in grounds twenty-one and twenty-two. Pursuant to Spera, we find that the trial court abused its discretion in not striking the motion with leave to amend and reverse with instructions to allow Lena to do so only as to grounds twenty-one and twenty-two.

Affirmed in part; reversed in part; and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

JOHN L. SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4615.

District Court of Appeal of Florida, Fourth District.

November 18, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Karen Miller, Judge, L.T. Case No. 07CF007793AMB.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

This appeal emanates from a search incident to an arrest in which John L. Smith was found to have cocaine in his possession ultimately leading to the charge of possession of cocaine with intent to sell within 1000 feet of a school. Smith filed a motion to suppress on the grounds that there was no probable cause to arrest him for violating the open container ordinance. The trial court denied the motion, after which Smith entered a no contest plea to the charge, reserving his right to appeal the trial court’s denial of his motion to suppress. We affirm.

In this case, the officer observed Smith walk out onto a public sidewalk with a plastic cup in hand, take a couple of sips, and then walk back behind an apartment stairwell approximately four times. The officer testified that he briefly lost sight of Smith when he disappeared behind the stairwell. After observing this behavior, the officer decided to approach Smith. When he approached, he could smell the odor of an alcoholic beverage emanating both from Smith and his cup. He then placed Smith under arrest for violating the open container ordinance. During the police officer’s search of Smith incident to his arrest, the contraband leading to the drug charge was discovered.

Based on this evidence, the trial court did not err in determining that the officer had probable cause to believe that there was alcohol in the beverage at the time he stepped on the public sidewalk in violation of the open container law. Although the officer briefly lost sight of Smith when he walked behind the stairwell, it was not unreasonable for the officer to believe that the beverage in the cup contained alcohol the entire time and

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that he did not add alcohol to the beverage after stepping behind the stairwell. See Curtis v. State, 748 So. 2d 370, 374 (Fla. 4th DCA 2000) (“A finding of probable cause does not require absolute certitude. The test for probable cause is whether the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been committed.”). Accordingly, the trial court properly denied the motion to suppress.

Affirmed.

MAY and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

MICHAEL JOE WYNPERLE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-3014.

District Court of Appeal of Florida, Second District.

Opinion filed November 18, 2009.

Appeal from the Circuit Court for Pasco County; Jack Day, Judge.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

This is an Anders¹ appeal of the revocation of Wynperle’s probation in May 2008, for committing a new law violation. Independent review of the record reveals no issues of arguable merit, but we must remand for entry of a formal order of revocation of probation.

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We previously relinquished jurisdiction for the trial court to enter an order of revocation. What we received were judgments and sentences dated December 17, 2008, for the original offenses. While these documents indicate that Wynperle is a probation violator and that he violated the conditions stated in the attached affidavits of violation of probation, those affidavits were not attached to the judgments and sentences, although they are in the original record. However, those affidavits were filed after the revocation of Wynperle’s probation that is at issue in this appeal, and they list conditions different from the one that Wynperle admitted to violating in this case.

A “trial court is required to enter a formal order of violation of probation that lists the specific conditions the court determined [the defendant] violated.” Cato v. State, 845 So. 2d 250, 251 (Fla. 2d DCA 2003). The transcript of the violation of probation hearing reflects that Wynperle admitted to violating his probation by committing a new law violation and that the trial court revoked his probation based upon that admission. We remand with directions that the trial court enter a formal order of revocation of probation reflecting these facts. See Dolinger v. State, 779 So. 2d 419, 421 (Fla. 2d DCA 2000).

Affirmed but remanded with directions.

WHATLEY, KELLY, and LaROSE, JJ., Concur.

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

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Notes:

1. Anders v. California, 386 U.S. 738 (1967).

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Courtesy of David Edelstein

ABEDELKADER DAWUDI, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-963.

District Court of Appeal of Florida, Fourth District.

November 18, 2009.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michele Towbin-Singer, Judge, L.T. Case No. 02-16591 CF10A.

Abedelkader Dawudi, Panama City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Abedelkader Dawudi appeals a trial court order summarily denying his motion for jail time credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s summary denial of his claim insofar as he sought credit for thirty-two days spent in jail before his transfer to prison after the original sentence was imposed, without prejudice to his right to exhaust all administrative recourse as to that claim, and to then seek mandamus relief in the circuit court if still not satisfied. See generally Shelton v. State, 942 So. 2d 1028 (Fla. 4th DCA 2006).

We reverse the trial court’s summary denial of this motion insofar as Dawudi sought credit for 147 days spent on probation, however. See Waters v. State, 662 So. 2d 332 (Fla. 1995); Hughes v. State, 927 So. 2d 1040 (Fla. 4 th DCA 2006). The State filed a response in this Court agreeing that the trial court erred on this point. We remand to the trial court to either award the requested credit of 147 days or to attach portions of the record to a new order of denial that conclusively refutes Dawudi’s claim of entitlement to credit for time previously served on probation.

Affirmed in Part; Reversed in Part and Remanded.

TAYLOR, MAY and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

ELIAS ROSADO, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-959.

District Court of Appeal of Florida, Fourth District.

November 18, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 06-010189CF10A.

Elias Rosado, Clermont, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The defendant appeals an order summarily denying his motion for post conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part.

The defendant was sentenced pursuant to a written negotiated plea agreement that did not mention habitual sentencing or restitution. In the rule 3.850 motion, he sought to withdraw his plea for a number of reasons. In the order to show cause, this court asked the state to address the allegation that defense counsel never advised the defendant of the sentence he would receive or that he would have to pay restitution. He alleged that neither the plea form nor colloquy established he agreed to be sentenced to ten years as a habitual felony offender for each offense. He also alleged he was not provided with notice, a hearing, or evidence concerning restitution. The state agrees that these grounds should be remanded to the trial court for further consideration and possibly an evidentiary hearing.

To the extent the trial court on remand may determine that the motion is facially insufficient for failing to expressly allege that, but for the alleged errors, the defendant would not have entered the plea, the defendant should be given at least one opportunity to refile his motion to correct the insufficiency, if he can do so in good faith. See Spera v. State, 971 So. 2d 754 (Fla. 2007); Williams v. State, 844 So. 2d 700 (Fla. 2d DCA 2003).

Accordingly, we reverse and remand the summary denial in part. We

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affirm the summary denial as to the balance of the motion.

Affirmed in part, reversed in part, and remanded.

POLEN, STEVENSON and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

CESAR LOMELIN-FLORES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3061.

District Court of Appeal of Florida, Fourth District.

November 18, 2009.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Lawrence Mirman and Sherwood Bauer, Jr., Judges, L.T. Case No. 2007CF000413A.

Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Cesar Lomelin-Flores entered a no contest plea to charges of DUI manslaughter and driving with a suspended license. Then, less than thirty days after the imposition of sentence for such offenses, he filed a pro se motion to withdraw plea, citing Florida Rule of Criminal Procedure 3.170(f), governing the withdrawal of pleas prior to the imposition of sentence. The trial court summarily denied the motion as untimely. We agree with Lomelin-Flores’s appellate claim that the trial court should have treated the defendant’s motion as one filed pursuant to Florida Rule of Criminal Procedure 3.170(1), governing motions to withdraw plea filed after the imposition of sentence, and ruled on the merits of the claims asserted. See Hulett v. State, 830 So. 2d 243, 244 (Fla. 4th DCA 2002). Nonetheless, we affirm the summary denial as the claims asserted in the motion are either conclusively refuted by the record or facially insufficient. See Sheppard v. State, 17 So. 3d 275, 287 (Fla. 2009) (holding that trial court should appoint conflict-free counsel where it has determined, following a limited hearing, that adversarial relationship exists between defendant and current counsel, provided allegations of defendant’s pro se motion are not conclusively refuted by the record).

Affirmed.

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POLEN, STEVENSON and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

WILLIAM VARS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4558.

District Court of Appeal of Florida, Fourth District.

November 18, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Dan L. Vaughn, Judge, L.T. Case No. 312005CF956.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The defendant appeals an order summarily denying his motion for post conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He argues the trial court erred in summarily denying the motion without providing him an opportunity to amend to cure the technical defect. The State agrees. We therefore reverse and remand the case to the trial court to allow the defendant an opportunity to amend his motion for post-conviction relief. See Spera v. State, 971 So. 2d 754 (Fla. 2007).

Reversed and Remanded.

MAY, DAMOORGIAN and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Ramon Catalan, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-956

District Court of Appeal of Florida, Third District

Opinion filed November 18, 2009.

An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967), from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge, Lower Tribunal Nos. 07-23611, 08-1342 & 08-2204.

Ramon Catalan, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN, SHEPHERD and LAGOA, JJ.

PER CURIAM.

Ramon Catalan (“Catalan”) appeals from an order revoking his probation. The trial court revoked Catalan’s probation solely on the basis of new charges filed

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against him. However, the written revocation order lists other violations of probation. Accordingly, because the order does not conform to the trial court’s oral pronouncement, we reverse and remand for entry of a corrected order. See Matthews v. State, 897 So. 2d 523, 524 (Fla. 3d DCA 2005). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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

Case No. 1D08-3267.

District Court of Appeal of Florida, First District.

Opinion filed November 17, 2009.

An appeal from the Circuit Court for Duval County, Michael R. Weatherby, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Meigo Bailey, Appellant, was convicted of first-degree murder, seconddegree murder, attempted second-degree murder, burglary of a dwelling, and two counts of attempted robbery. He appeals these convictions, arguing that the trial

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court erred in admitting an audio-recorded statement, which he contends was taken in violation of his right against self-incrimination. For the reasons that follow, we affirm.

On December 2, 2004, Appellant was shot during an alleged home-invasion robbery attempt, and as a result, he was hospitalized. On December 6, 2004, Detectives Padgett and Parrales went to the hospital to interview Appellant about the alleged robbery attempt. There is no recording of this interview. According to Detective Padgett, he read Appellant his Miranda¹ rights and ascertained that he understood them before proceeding with substantive questioning. Detective Padgett testified that Appellant began to talk with him about various robberies Detective Padgett had already been investigating. This conversation led to information regarding a murder that had been the result of a home-invasion robbery on Phillips Highway on November 9, 2004. Detective Padgett recalled that Appellant admitted to being involved in this crime and was able to give details about the crime, including which firearms were used. According to the information Appellant provided Detective Padgett, Appellant remained outside the home while his companions went inside. While Appellant was outside, he heard shots fired. When Appellant’s companions emerged from the home, one of them informed

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Appellant that “it had gone wrong.” At the end of the interview, Detective Padgett told Appellant he would return the next day with a homicide detective.

The next day, Detective Padgett returned, as promised, with three other detectives: Parrales, Gupton, and Meacham. Detectives Gupton and Meacham both carried digital audio recorders, and the majority of Appellant’s interaction with the officers was recorded. The pertinent portions of the recording were played for the trial court at the suppression hearing, and we have listened to those portions as well.²

When the officers arrived at the hospital on December 7, 2004, Detective Gupton reviewed a constitutional rights form with Appellant, which Appellant referred to as a “Waiver of Rights Form” in the proceedings below. The audio recording reflects that Detective Gupton read each right aloud and asked Appellant if he understood each one. Not all of Appellant’s responses are audible, but each audible response is “Yes.” At the suppression hearing, Detective Gupton testified that Appellant appeared to understand the form, did not have any questions about it, and did not ask for a lawyer. The form itself reflects that Appellant placed his initials next to each right and signed at the bottom.

After reading Appellant’s rights and ascertaining that Appellant understood them, Detective Gupton asked Appellant some preliminary questions regarding his

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background and his gunshot wound before proceeding to substantive questioning. The substantive questioning began with the following exchange:

DET GUPTON: Meigo, in speaking with Detective Padgett, as he had said, there was an incident that occurred on Phillips Highway.

MR. BAILEY: Uh huh.

DET GUPTON: Are you aware of that incident? I . . .

MR. BAILEY: Yes sir.

DET GUPTON: I’m sorry. Could you do me a favor, Meigo, and try to talk a little louder.

MR. BAILEY: Yes, sir.

DET GUPTON: Okay. I know it’s hard but it helps me understand things clearer. What can you tell me about that incident?

MR. BAILEY: Man, I don’t really want to talk about that (inaudible).

DET PADGETT: Why is that?

MR. BAILEY: Huh?

DET PADGETT: Why is that?

MR. BAILEY: Cause I don’t want no record of it on tape[.]

DET PADGETT: Cause what?

MR. BAILEY: Cause I don’t want to record on tape or nothing like that.

DET GUPTON: Okay, well, I’ll tell you what. I’ll turn mine off, okay? I’ll turn it off. How about that?

MR. BAILEY: You sure you (inaudible)?

DET GUPTON: What?

MR. BAILEY: (Inaudible)

DET GUPTON: Yeah.

. . . .

MR. BAILEY: Let me see it. Is it turned off? Let me see it. Is it turned off?

DET PADGETT: Yep. Ain’t no tape in it is there?

DET MEACHAM: Naw, it’s just a little digital thing. It’s shut off.

DET PADGETT: Digital recorder, that’s all.

MR. BAILEY: Okay.

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After this exchange, the interview continued. Appellant repeated the information he had given to Detective Padgett the day before, named the other perpetrators, and described the home where the November 9, 2004, robbery and murder occurred.

In his motion to suppress the interview, Appellant argued that he was attempting to invoke his right to remain silent when he stated, “Man, I don’t really want to talk about that.” He contended that, based on this statement, the officers should have ended the interrogation and were not permitted even to ask clarifying questions. Instead, he argued, the officers should have honored his right “to cut off questioning.” Aer a hearing, the trial court denied the motion, opining that “what the officers did was appropriate under the circumstances.” The recording was played at trial, and the jury ultimately convicted Appellant of several crimes based on the incident that occurred on Phillips Highway on November 9, 2004.

On appeal, Appellant contends that the trial court erred in failing to deem his statement, “Man, I don’t really want to talk about that,” an unequivocal invocation of his right to remain silent. He relies primarily on Cuervo v. State, 967 So. 2d 155 (Fla. 2007), for his contention that the admission of his incriminating statements was erroneous. The State contends that the instant case is indistinguishable from Owen v. State, 862 So. 2d 687 (Fla. 2003), and that, as a result, we must affirm. We, however, find key factual distinctions between the instant case and each of the cases the parties cite.

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The factual distinctions between the instant case and the cases the parties cite illustrate the following point, made by the Florida Supreme Court in State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001):

Suppression issues are extraordinarily rich in diversity and run the gamut from (1) pure questions of fact, to (2) mixed questions of law and fact, to (3) pure questions of law. Reviewing courts must exercise care when examining such issues, for while the issues themselves may be posed in broad legal terms . . ., the actual ruling is often discrete and factual . . . .

(footnotes omitted). After noting the marked diversity in suppression issues, the Glatzmayer court emphasized, “As with all trial court rulings, a suppression ruling comes to the reviewing court clad in a presumption of correctness as to all factbased issues, and the proper standard of review depends on the nature of the ruling in each case.” Id. (footnotes omitted).

An appellate court reviewing a ruling on motion to suppress is required to “interpret the evidence and all reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court’s ruling.” See Connor v. State, 803 So. 2d 598, 605 (Fla. 2001); Alvarez v. State, 890 So. 2d 389, 392 (Fla. 1st DCA 2004) (noting that a trial court’s inferences regarding the findings of historical fact are entitled to “appropriate weight”). It has also been observed, however, that to the extent a ruling is based on an audio recording, “the trial court is in no better position to evaluate such evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court’s ruling.”

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Dooley v. State, 743 So. 2d 65, 68 (Fla. 4th DCA 1999) (citing Almeida v. State, 737 So. 2d 520, 524 (Fla. 1999)). In any event, the constitutional issues involved in a ruling on a motion to suppress, i.e. the trial court’s application of the law to the facts, should be reviewed de novo. Connor, 803 So. 2d at 605; Cuervo, 967 So. 2d at 160.

Our decision in this case results from the interplay of all of these standards, as well as the general notion that, as an appellate court, we always presume that a trial court’s decision is correct until the appellant has met the burden of showing error. See Philip J. Padovano, Florida Appellate Practice §18:2 at 336 (2009 ed.). In the absence of such a showing, affirmance is required. Id.

With these principles in mind, we turn to the substantive law, beginning with the well-settled rule that, to protect a suspect’s rights under the constitutions of the United States and Florida, an officer must give Miranda warnings before conducting a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966); see Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992). Protection of the rights recognized in both constitutions requires that if the suspect “indicates in any manner” that he or she does not want to be interrogated, the interrogation must not begin or, if it has already begun, must stop. Miranda, 384 U.S. at 473-74; Traylor, 596 So. 2d at 961. Once a suspect has validly waived his or her Miranda rights, officers are not required to stop an interrogation unless the suspect unequivocally

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invokes those rights. State v. Owen, 696 So. 2d 715, 717 (Fla. 1997); accord Davis v. United States, 512 U.S. 452, 458-59 (1994) (holding that officers are not required to terminate an interrogation upon a suspect’s reference to an attorney unless the reference is an unequivocal assertion of the right to counsel). If the suspect makes an equivocal or ambiguous reference to the right to remain silent after having validly waived that right, officers may continue the interrogation without attempting to clarify the meaning behind the reference. Owen II, 696 So. 2d at 717.

In Alvarez v. State, 15 So. 3d 738, 743-45 (Fla. 4th DCA 2009), the Fourth District explained the distinction between the standards applicable to a suspect’s initial waiver of his or her constitutional rights and a subsequent invocation of those rights as follows:

Invocation and waiver of constitutional rights are distinct inquiries, though, and should not be merged. See Smith v. Illinois, 469 U.S. 91, 98 (1984). The state must prove by a preponderance of the evidence that a suspect has voluntarily, knowingly, and intelligently waived his Miranda rights before a statement may be used against him. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); Ramirez v. State, 739 So.2d 568, 575 (Fla. 1999). Thus, an ambiguous waiver must be clarified before initial questioning. See Rodriguez, 518 F.3d at 1080. However, once a suspect has waived his rights, an attempt to revoke the waiver must be unambiguous. See Owen, 696 So. 2d at 717-718; Collins v. State, 4 So. 3d 1249, 1250 (Fla. 4th DCA 2009). Unlike the pre-waiver context, an ambiguity need not be clarified before proceeding with questioning. See Davis, 512 U.S. at 459; Owen, 696 So. 2d at 717; Collins, 4 So. 3d at 1250. This rule regulates the tension recognized in Miranda between, on the one hand, the preservation of the right against self-incrimination and, on the other, the need for

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clear rules for law enforcement in the field. See Davis, 512 U.S. at 461.

Id. at 745. The Fourth District’s discussion of pre-waiver and post-waiver analysis is consistent with case law from the Florida Supreme Court, such as Almeida v. State, 737 So. 2d 520, 524 (Fla. 1999), where the court noted that an equivocal or ambiguous invocation of the right to remain silent would be insufficient to “trump a [prior] clear waiver” of that right. The instant case requires a post-waiver analysis.³ More specifically, it requires us to decide whether Appellant’s statement, “Man, I don’t really want to talk about that,” was equivocal. If it was, then the officers should have cut off questioning.

In arguing that the statement was equivocal, the State notes the similarity between the phrasing of Appellant’s statement and the phrasing of some statements deemed equivocal in Owen v. State, 862 So. 2d 687 (Fla. 2003). The statements at issue in Owen were “I don’t want to talk about it” and “I’d rather not talk about it.” Id. at 696-97. In deeming these utterances equivocal, the Florida Supreme Court provided the following information about their context:

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Owen’s ambiguous responses came . . . when he was being interrogated by Officers Lincoln and Wood about the Slattery homicide. Owen had not yet confessed at the time he made the statements. Lincoln asked Owen, “There’s a few things that I have to know, Duane. A couple pieces don’t fit. How did it come down? Were you looking at the particular house or just going through the neighborhood?” Owen’s response was, “I’d rather not talk about it.” A short time later, following additional questions and answers, Lincoln asked, “Now, did you have a bicycle? Of course you did. Now, where did you put it?” Owen answered, “I don’t want to talk about it.”

Id. at 697 n.6. The Owen court held that the interrogating officers had no duty to either terminate questioning or ask questions to clarify the defendant’s responses “in the context presented.” Id. at 697-98. In one of the Owen defendant’s prior appeals, the supreme court had characterized the questions that elicited the equivocal responses as concerning “relatively insignificant details of the crime.” State v. Owen, 696 So. 2d 715 (Fla. 1997).

Essentially contending that the context of a challenged statement is more important than the exact wording, Appellant directs our attention to Cuervo v. State, 967 So. 2d 155 (Fla. 2007). The interrogation in Cuervo was conducted through a translator because the suspect spoke only Spanish and the lead officer spoke only English. 967 So. 2d at 162. A Spanish-speaking officer read the defendant each of the Miranda rights from a pre-printed form prepared in Spanish by the Sheriff’s Office. Id. at 157. The Spanish-speaking officer then asked the defendant whether he understood each of the rights that had just been read. Id. The defendant answered, “[Y]es,” and the Spanish-speaking officer then asked, “Do

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you wish to talk about the matter and make a statement, yes or no?” Id. The defendant answered, “No quiero declarar nada,” which is literally translated as,” I don’t want to declare anything.” Id. After confirming this statement with the defendant, the Spanish-speaking officer told the lead officer, “He does not wish to talk with us.” Id. The lead officer instructed the Spanish-speaking officer to have the defendant initial the rights form line-by-line and sign it at the bottom. Id. Aer the defendant complied, the lead officer instructed the Spanish-speaking officer to tell the defendant that he could give “his side of the story” if he wanted to. Id. The Florida Supreme Court held that the Cuervo defendant’s statement that he did not want to “declare anything” was a “clear invocation of the right to remain silent” and that no further questioning should have ensued. Id. at 164.

In explaining its holding, the Cuervo court emphasized that the defendant’s invocation of the right to silence “came solely in response to the inquiry concerning his Miranda rights, before any questions specific to the crime were asked.” 967 So. 2d at 163. The Cuervo court distinguished Owen because the statements deemed equivocal there were made “during the course of an interrogation.” Id. Based on the context of the statements at issue in Owen, the Cuervo court noted that they “could have been referring [either] to specific questions about the crime or to the underlying right to cut off all questioning.” Id. The Cuervo court also found it significant that the defendant had already invoked

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his rights by saying, “No quiero declarar nada,” by the time the officers asked him to sign the rights form. See id. at 164.

Although we do not agree with Appellant that the ruling in the instant case was erroneous, we do agree that context is generally as important, if not more important, than the exact words a suspect uses in a statement that is alleged to be an invocation of the right to remain silent. We also note the Fourth District’s observation in Alvarez that “courts have been more apt to find a revocation of a waiver of the right to remain silent unambiguous and unequivocal if made before substantive questioning.” 15 So. 3d at 744. We believe this trend is logical, for the reasons expressed by the Alvarez court:

[I]f a suspect has not answered any questions and fails to clearly waive his right to remain silent, or has waived his right but then answered only “mundane” questions before any substantive questioning, announcing he does not want to answer anymore, it is reasonable to conclude that he has decided not to speak. However, where a suspect has heard, understood, and waived his Miranda rights, and has been answering substantive questions without incident and continues to do so, a statement which may have been unambiguous if uttered initially may be objectively ambiguous when considered in context.

Id. at 745. Despite these general principles, we believe that, on the record before us, Appellant has not met his burden to show that the trial court erred in concluding that the officers’ response to Appellant’s statement was reasonable under the circumstances.

As noted above, the parties have not cited any case with facts so similar to

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those presented here that we are compelled to agree with either side. We agree with the State that the words Appellant used in the instant case were similar to the words used in Owen. We also acknowledge that here, as in Owen, the statement at issue came in response to a question about the crime, rather than a question concerning whether Appellant wanted to waive his rights. However, these observations do not settle the matter. One key distinction between the instant case and Owen is that the statement at issue was made at the beginning of the substantive questioning, rather than after hours of questioning. Similarly, this case is not resolved simply by an acknowledgement that, as in Cuervo, the statement in question was made at the beginning of the interview before the officers began to ask difficult, specific questions about the crime. Cuervo is distinguishable because the statement at issue here came after a valid waiver of Miranda rights and was not made in response to an inquiry as to whether Appellant wished to waive those rights. These critical distinctions illustrate that the instant case cannot be resolved merely by analogy to Owen or Cuervo.

Because we have found no case that is more closely analogous than either Owen or Cuervo, we are le to draw our own conclusions regarding the specific statement Appellant uttered. In most appeals, courts have only the cold record to consider. In this case, we had the relatively unique opportunity to listen to the statement as it was uttered at the time of the interview. If we had only the cold

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record to consider here, we might be persuaded that the Alvarez court’s reasoning requires reversal, as Appellant did make the statement at issue at the inception of the substantive questioning. Because, like the trial court, we were able to listen to the interview, we were able to consider the manner in which the words at issue were expressed and determine whether the officers responded reasonably.

Having listened to the pertinent portions of the recording, we can understand why the trial court reached the result it did. At first blush, the transcribed words “Man, I don’t really want to talk about that” may appear rather emphatic. However, the State has noted, and we agree, that the word “really” is not always used to express emphasis, but is sometimes used in a hedging manner. This point led us to consider the words in their audible context. From the recording, we know that Appellant essentially mumbled the words in question and followed them with additional, indecipherable language. The words on the recording simply do not come across as a clear assertion of a right. Therefore, we cannot say that the trial court erred in concluding that Appellant’s words were insufficient to trump his prior waiver of his right to remain silent. Accordingly, Appellant’s judgments and sentences are AFFIRMED.

WEBSTER and DAVIS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Notes:

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. As the supreme court noted in Almeida v. State, 737 So. 2d 520, 524 n.5 (Fla. 1999), “[t]he trial court had no special vantage point in reviewing this tape.”

3. In his arguments to this Court, Appellant notes that after having him sign the rights form, the officers never asked whether he wished to waive those rights, arguably implying that a pre-waiver analysis applies. However, Appellant failed to argue to the trial court that he did not waive his rights before stating that he “really [didn't] want to talk about that.” Instead, in his motion to suppress, Appellant referred to the rights form as a “Waiver of Rights Form” and argued that Appellant was asserting his right to cut off questioning (rather than to avoid being interrogated altogether) when he made that statement.

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Courtesy of David Edelstein