BAILEY v. STATE

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District Court of Appeal of Florida,Second District.

Randalyn BAILEY, Appellant, v. STATE of Florida, Appellee.

No. 2D05-1697.

Decided: March 7, 2008

Joseph M. Davis, Tampa, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.

Randalyn Bailey seeks review of her judgment and sentence for second-degree murder with a firearm, robbery with a firearm, and burglary of a dwelling with an assault or battery.   This is another case in which we must reverse based on our decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), in which we held that the standard Tampa Police Department Form 310 Miranda1 warnings were deficient because they did not inform the defendant of the right to have counsel present during questioning.   Our reversal on this basis renders Bailey's challenge to the denial of her motion for mistrial moot.

Bailey was charged with first-degree murder, robbery with a firearm, and burglary of a dwelling with an assault or battery.   Prior to trial, Bailey filed a motion to suppress statements she made to police officers.   The trial court granted the motion regarding certain statements made at the time Bailey was initially detained and denied the remainder of the motion.   A jury found Bailey guilty of the lesser-included offense of second-degree murder with a firearm, and guilty as charged for robbery with a firearm and burglary of a dwelling with an assault or battery.

On appeal Bailey argues that the trial court erred in denying her motion to suppress.   Bailey's motion to suppress addressed three different “statements” she made to police officers.   First, Bailey argued that the statements she made to Deputies Stutler and Gause and Detective Sandoval shortly after her arrest on August 31, 2003, should be suppressed because they were obtained during the course of an illegal stop and arrest.   The trial court granted Bailey's motion to suppress the statements made to Deputies Stutler and Gause and Detective Sandoval on August 31 until Bailey revealed that there was a probation warrant out for her.   The State has not appealed this ruling, and it is therefore affirmed.

Second, Bailey argued that the statements she made to Detectives Duran and Drabiniak at the police station in Arcadia on August 31, 2003, should be suppressed because the Miranda warnings read to her were deficient.   The warnings stated, “You have the right to talk to a lawyer before answering any of our questions,” but did not expressly inform Bailey that she had the right to talk to a lawyer during questioning.   The trial court denied Bailey's motion to suppress these statements.   While the trial court did not have the benefit of this court's recent decision in Powell, the decision clearly requires reversal of the court's denial of the motion to suppress statements Bailey made to Detectives Duran and Drabiniak at the police station in Arcadia on August 31, 2003.   See Powell, 969 So.2d at 1067.

Third, Bailey argued that the statements she made to Detectives Shegstad, Redwine, and Drabiniak en route to the police station in Tampa on September 3, 2003, should be suppressed because she was not read any Miranda warnings prior to being questioned.   The trial court also denied Bailey's motion to suppress these statements.   On appeal, the State does not dispute that Bailey was entitled to Miranda warnings on September 3 but argues that the original Miranda warnings were sufficient to apprise Bailey of her right to counsel three days later.   Even accepting this dubious assertion, the initial Miranda warnings were legally insufficient under Powell.   See Powell, 969 So.2d at 1067.   Therefore, Powell also requires reversal of the court's denial of the motion to suppress statements Bailey made to Detectives Shegstad, Redwine, and Drabiniak en route to the police station in Tampa on September 3, 2003.

As we did in Powell, we certify the following question as one of great public importance pursuant to article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

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?

Affirmed in part, reversed in part, and remanded.

I concur separately to point out that while I am required to accept Powell as binding authority in this district,2 I joined in the concurrence in M.A.B v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), review granted, 962 So.2d 337 (Fla. Aug. 21, 2007), which, by virtue of a tie vote, provided an opinion with no binding precedential value on the same Miranda issue presented in this case.   As history played out, the panel in Powell was the next to receive a case involving the same issue;  therefore, it became that panel's obligation to decide this issue's fate one way or the other in this district.

For the same reasons outlined in Judge Canady's concurrence in M.A.B., I do not agree with the Powell majority.   In addition to the reasoning of that concurrence, I would add the following personal observation.   In my view, Miranda warnings were designed to be, and are only required to be, understood by ordinary people.   For over forty years, ordinary people past the age of reason have consistently understood Miranda's right-to-counsel warning as encompassing the entire duration of a police interrogation.   I submit that if only attorneys who are highly educated and accomplished wordsmiths can ferret out an inadequacy in the warning's language, then the warning as given was both adequate and reasonably understandable by the ordinary person who is far less educated or capable of parsing legal verbiage.   I am still convinced that the M.A.B. concurring opinion is correct.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   I note that the supreme court has now accepted review of this court's decision in Powell.   See State v. Powell, 2008 WL 332503 (Fla. Jan. 16, 2008).

PER CURIAM.

ORTHCUTT, C.J., and STRINGER, JJ., Concur.VILLANTI, J., Concurs specially.

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