author: SLEET, Judge.

text:
    Richard K. INGLIS, Esq., Appellant, v. ROBERTA SUE CASSELBERRY, Appellee.
    No. 2D12-6463.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Rehearing Denied Feb. 5, 2014.
    See also 133 So.3d 961.
    Michael R. Presley, Robert M. Presley, and Steven M. Presley of Presley Law and Associates, P.A., Wellington, for Appellant.
    Michael A. Hymowitz of Braverman and Hymowitz, Fort Lauderdale, for Appellee.
   SLEET, Judge.

Richard Inglis, as trustee of the Berlinger Discretionary Trusts, appeals two orders entered by the trial court. He appeals the portion of the court’s omnibus order issued November 27, 2012, that granted Roberta Sue Casselberry, the former wife, a continuing writ of garnishment over any disbursements made from the Berlinger Discretionary Trusts to or for the benefit of Bruce Berlinger, the former husband. He also appeals the nonfinal order rendered on the same date that made Inglis, as trustee, a party to the former wife’s postdissolution action and subject to the continuing writs of garnishment. Specifically, Inglis argues that the trial court did not have personal jurisdiction over him as the trustee to the Berlinger Discretionary Trusts.

We affirm the order imposing continuing writs of garnishment without further comment. See Berlinger v. Casselberry, No. 2D12-6470, 133 So.3d 961, (Fla. 2d DCA Nov. 27, 2013). We write only to address the circuit court’s order substituting Inglis as a party. Because we agree that Inglis voluntarily submitted himself to the court’s jurisdiction, we affirm.

I. BACKGROUND

This case arises from the same set of suspect circumstances outlined in the companion case, Berlinger, slip op. at 1-6, 133 So.3d at 961. In summary, Berlinger and Casselberry divorced after thirty years of marriage. Pursuant to a marital settlement agreement, ratified by the court and incorporated into the final judgment of dissolution, Berlinger agreed to pay Cas-selberry $16,000 a month in permanent alimony. While continuing to live on the substantial proceeds of the family trusts, Berlinger voluntarily stopped paying alimony in May 2011.

When Berlinger stopped paying alimony, Casselberry filed a motion to enforce and for contempt. In August 2011, the parties were able to reach a settlement wherein Berlinger agreed to satisfy a portion of his alimony arrears by liquidating an IRA account. Because a substantial sum remained owing in arrears following the liquidation, the court issued writs of garnishment to SunTrust as the corporate trustee to the Berlinger Discretionary Trusts. When Berlinger continued to avoid his support obligations, Casselberry filed a second motion for civil contempt and enforcement against him. On January 17, 2012, the court issued additional writs of garnishment against SunTrust. Cassel-berry then filed a motion for continuing writ of garnishment against SunTrust seeking to attach the present and future distributions made to or for the benefit of Berlinger from any trust. Berlinger’s attorney, Michael Presley, filed a response in opposition to garnishment on behalf of SunTrust. The trial court set a hearing on that motion for November 6, 2012.

Although a wealthy man, Berlinger undertook an inordinate amount of legal maneuvering to avoid his support obligation to Casselberry. To thwart Casselberry’s attempts to enforce his support obligation, he appointed his attorneys, including In-glis, as trustees to the Berlinger Discretionary Trusts and discreetly transferred his residential property, worth $1,386,000, into a previously undisclosed trust, the Schweiker-Berlinger Irrevocable Life Insurance Trust, of which he was the sole beneficiary. Attorney Presley enlisted the assistance of his longtime friend, Inglis, to prepare the deeds and set up the new trust.

On June 12, 2012, while the garnishment and family law matters were proceeding, the Twentieth Judicial Circuit Probate Court, in Case No. 11-559-CP, removed SunTrust as the corporate trustee of the Berlinger Discretionary Trusts and appointed and substituted Inglis as the new corporate trustee. Pursuant to the court’s order and upon the instructions of Inglis, SunTrust transferred all of the funds and assets of the Berlinger Discretionary Trusts to Inglis’s designated custodian, Rochdale, a securities firm. Inglis immediately assumed the role as trustee and managed the funds and disbursements. Thereafter, attorney Presley filed a motion on behalf of SunTrust and Inglis seeking substitution of Inglis for SunTrust as a party to the family law case. Inglis personally filed a motion in opposition to Cas-selberry’s discovery requests and a motion in limine to prevent discovery of privileged documents related to the trusts. Additionally, Presley, Inglis, and Berlinger pursued a joint defense agreement in the family law case.

On October 13, 2012, Gary Rudolf, an attorney for SunTrust, noticed an amended motion for substitution of the trustees for hearing on November 6, 2012. The notice was served on Berlinger, Casselber-ry’s counsel, and attorney Presley, who represented both Inglis and Berlinger. On November 5, 2012, one day before the hearing, Inglis withdrew his motion for substitution and filed an action for declaratory relief seeking a declaration that the family trusts at issue were discretionary trusts.

During the November 6, 2012, hearing, Inglis voluntarily appeared and testified that he had already assumed the role of special trustee. He testified that for the past year, the trustees directed that payments be made on behalf of Berlinger to his creditors and utilities, instead of to Berlinger. He acknowledged that Sun-Trust distributed all of the trust assets to him with a final accounting. He testified that the trusts were discretionary and opined that the applicable trust statute, section 736.0504, Florida Statutes (2011), prohibits any creditor, including Cassel-berry, from attaching any distributions paid on behalf or for the benefit of the beneficiary, Berlinger. The trial court sustained repeated objections to attorney Presley’s attempts to offer Inglis’s legal opinion in his capacity as special trustee. The court affirmed that Inglis was formally the special trustee and that he stepped into the shoes of SunTrust; however, the court determined that Inglis should not be allowed to offer further legal conclusions.

Attorney Presley objected to Casselber-ry’s attempt to question Inglis about the deed transferring Berlinger’s residential property to the Schweiker-Berlinger Irrevocable Life Insurance Trust and referred to Inglis’s motion in limine for support. Attorney Presley sought additional relief on behalf of Inglis by requesting that Cas-selberry be prohibited from obtaining certain records concerning distributions from the trust.

During the hearing, the court informed Inglis that there was a hold on the trust assets and funds to comply with the original writs of garnishment. Inglis replied that as the trustee, he had set aside enough funds to comply with the existing writs and to fulfill any additional writs that might be awarded by the court. Inglis expressly agreed to be substituted for SunTrust.

On November 27, 2012, the trial court entered orders granting continuing writs of garnishment against the Berlinger Discretionary Trusts and granting the motion for substitution, which substituted Inglis as the garnishee as to the continuing writs of garnishment. SunTrust remained the garnishee as to the January 17, 2012, writs already granted and in effect prior to In-glis’s appointment. Inglis and Berlinger pursued separate appeals. See Berlinger, slip op. at 1,133 So.3d at 963.

II. ANALYSIS

Inglis argues that the trial court did not have personal jurisdiction over him as special trustee and the trust because the court did not grant the motion for substitution until the same date it granted the continuing writ of garnishment. He contends that once the probate court removed SunTrust from the position of corporate trustee, the trial court lost jurisdiction over the Berlinger Discretionary Trusts in the garnishment and family law action until the motion for substitution was granted on November 27, 2012. We disagree.

Equity will not countenance such an argument that elevates form over substance. Inglis voluntarily submitted himself to the jurisdiction of the family law court when he was appointed as the special trustee of the Berlinger Discretionary Trusts, filed motions seeking relief in family court, and voluntarily appeared as the trustee at the November hearing in family court. The general rule in Florida is that a trustee is an indispensable party in all proceedings affecting the estate. In re Estate of Stisser, 932 So.2d 400, 401 (Fla. 2d DCA 2006). In order to exercise personal jurisdiction over the trustee or the trust, either service of process must be made on the trustee or the trustee must voluntarily submit to the court’s jurisdiction. See Beekhuis v. Morris, 89 So.3d 1114, 1116 (Fla. 4th DCA 2012); see also Grand Couloir Corp. v. Consol. Bank, N.A., 596 So.2d 697, 699 (Fla. 2d DCA 1992).

In support of his argument, Inglis relies on Beekhuis, 89 So.3d at 1114. Beekhuis and her mother were co-trustees of a trust created by Beekhuis’s mother. Id. at 1115. According to the terms of the trust, if one trustee became incapacitated, the other trustee would assume the duties of the incapacitated trustee Id. Beekhuis, in her personal capacity, initiated proceedings to determine whether her mother was legally incapacitated. Pursuant to those proceedings, the court appointed Beek-huis’s brother as their mother’s guardian. Id. Within the guardianship proceedings, the brother filed several.motions seeking to remove Beekhuis as trustee and to compel her to relinquish the trust’s assets. Id. In response to the motions, Beekhuis made limited appearances, in her individual capacity, asserting that the court lacked jurisdiction over the trustee and the trust property. Id. On appeal from the order requiring Beekhuis, as trustee, to deliver the trust’s assets to her brother, Beekhuis argued that the probate court lacked jurisdiction over the trust and its trustee because she did not file any pleadings and sought no relief in her capacity as trustee and did not submit to the jurisdiction of the court. Id. at 1116. The district court agreed and held that the probate court lacked jurisdiction over Beekhuis as trustee and the trust because the original pleadings never raised any claim over the trust and because Beekhuis continually asserted that the court lacked jurisdiction over the trust and trustee. Id.

Beekhuis is distinguishable from the case at hand because Casselberry sought writs of garnishment as to the Ber-linger Discretionary Trusts in- her initial pleadings and Inglis did not continually assert that the court lacked jurisdiction over the trust and himself as the trustee. Immediately after his appointment as special trustee, Inglis requested and received all of the assets in the Berlinger Discretionary Trusts. He selected a custodian and began making disbursements on behalf of Berlinger directly to his creditors and utilities. Attorney Presley, who represented both Berlinger and Inglis, filed a motion to substitute Inglis as a party along with motions seeking family law court intervention in discovery matters involving the trusts. It was readily apparent that Inglis’s objective was to offer his legal opinion in an effort to persuade the trial court that these discretionary trust were not subject to writs of garnishment from a former spouse. “[Tjhose who participate in litigation by moving the court to grant requests materially beneficial to them, have submitted themselves to the court’s jurisdiction.” First Wis. Nat’l Bank of Milwaukee v. Donian, 343 So.2d 943, 945 (Fla. 2d DCA1977).

Inglis’s withdrawal of the motion to substitute one day before the November hearing is of no consequence. Upon proper service of notice of the hearing to his attorney, Inglis voluntarily appeared as the trustee at the November 2012 hearing and actively participated in the parties’ arguments regarding whether the trial court had authority to issue a writ of garnishment against disbursements made from the Berlinger Discretionary Trusts. Thus, Inglis voluntarily submitted to the court’s jurisdiction by participating in the litigation and moving the court to grant requests materially beneficial to himself and the Berlinger Discretionary Trusts.

III. CONCLUSION

Accordingly, we affirm the trial court’s orders granting the former wife’s motion for continuing writs of garnishment and substituting Inglis as a party to the family law action.

Affirmed.

CASANUEVA and MORRIS, JJ., Concur.

      . (1) The Rosa B. Schweiker Trust; (2) the Frederick R. Berlinger Trust; (3) the Rose S. Berlinger Trust; and (4) the Schweiker-Ber-linger Irrevocable Life Insurance Trust.

      . We note that the same circuit court judge presided over the substitution of the trustees in probate court and issued the writs of garnishment in the family law case. As a result, Berlinger and Inglis, as special trustee, through Attorney Presley, sought disqualification of the judge and subsequently pursued prohibition relief through this court. That petition was denied. See Berlinger v. Casselberry, 2D 12-4845 (Fla. 2d DCA Sept. 28, 2012).


source: Caselaw Access Project

author: VTLLANTI, Judge.

license: Public Domain

text:
    Timothy W. TUTTLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3972.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2014.
    Rehearing Denied March 31, 2014.

      Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VTLLANTI, Judge.

Timothy W. Tuttle, Jr., appeals his convictions and sentences for one count of manslaughter with a firearm and one count of armed burglary. We affirm Tuttle’s conviction for manslaughter with a firearm without further discussion. However, for the reasons that follow, we must vacate Tuttle’s conviction and sentence for armed burglary and remand for further proceedings.

On July 10, 2010, two armed and masked men burst into the house Eric Stuebinger shared with his girlfriend and their infant son. Once inside, the perpetrators demanded drugs and money. When neither was forthcoming, one of the men shot Stuebinger. After ransacking the house and threatening Stuebinger’s girlfriend with a gun, the men fled. Stue-binger subsequently died from the gunshot wound. His girlfriend was later able to identify one of the perpetrators as Tuttle, and the State charged him with one count of second-degree murder, one count of attempted home invasion robbery with a firearm causing death or great bodily harm, and one count of armed burglary. At trial, the jury found Tuttle guilty of the lesser offenses of manslaughter with a firearm and attempted home invasion robbery and guilty as charged of the armed burglary.

At a subsequent sentencing hearing, Tuttle argued, and the State agreed, that Tuttle could not be convicted of both attempted home invasion robbery and armed burglary due to double jeopardy concerns. Tuttle and the State also agreed that the trial court should vacate the “lesser” of the two offenses. However, they disagreed on which of those two convictions was the “lesser.” Tuttle contended that the armed burglary verdict should be vacated because the offense of burglary is always subsumed within the offense of home invasion robbery. The State, on the other hand, contended that the attempted home invasion robbery verdict should be vacated because that offense carried the lesser sentence. The trial court agreed with the State, vacated the attempted home invasion robbery verdict, and convicted and sentenced Tuttle on the armed burglary charge. Based upon binding precedent,- this was error.

The Florida Supreme Court has explained how courts are to distinguish “lesser” offenses from “greater” offenses as follows:

In distinguishing lesser offenses from greater offenses when faced with a double jeopardy violation, this Court has stated that based upon section 775.021(4), lesser offenses “are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.” State v. Florida, 894 So.2d [941] at 947 [ (Fla. 2005) ] (citing State v. McCloud, 577 So.2d 939, 941 (Fla.1991) (holding that an offense is a lesser offense “for purposes of section 775.021(4) only if the greater offense ... includes the lesser offense”)). Further, section 775.021(4)(b)(3) itself states that lesser offenses are offenses “the statutory elements of which are subsumed by the greater offense.” Therefore, the statutory elements of the lesser offense must he subsumed by the statutory elements of the greater offense in order for it to be considered the lesser offense in the dou-blejeopardy context.

Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) (emphasis added). Thus, the Pizzo court held that trial courts are to rely exclusively on an analysis of the statutory elements of the crimes to determine which is the “lesser,” and it explicitly rejected the argument advanced by the State that the determination of which offense is the “lesser” offense should be based on a comparison of the punishments for the two offenses. Id. This analysis dictates our resolution here.

Home invasion robbery is defined as a “robbery that occurs when the offender enters a dwelling with the intent to commit a robbery, and does commit a robbery of the occupants therein.” § 812.135(1), Fla. Stat. (2010). Burglary is defined as “entering or remaining in a dwelling ... with the intent to commit an offense therein.” § 810.02(l)(a), Fla. Stat. (2010). Even a cursory review of these elements makes clear that “[h]ome invasion robbery is in essence an aggravated form of burglary, because it requires a burglary and a robbery.” McAllister v. State, 718 So.2d 917, 918 (Fla. 5th DCA 1998). Because of the overlapping nature of the offenses, the offense of burglary “is a lesser degree of the same substantive crime” as home invasion robbery. Id. at 918-19. Therefore, under the clear dictates of section 775.021(4)(b)(3) and the Pizzo test, burglary is a lesser offense than home invasion robbery, and the burglary conviction should therefore be the one vacated to avoid a double jeopardy violation.

This court previously correctly applied the Pizzo test for lesser offenses in a case factually indistinguishable from this one. In Schulterbrandt v. State, 984 So.2d 542 (Fla. 2d DCA 2008), the defendant was charged with two counts of attempted home invasion robbery and one count of burglary based on a single home invasion incident. After considering the elements of the offenses, this court held:

Schulterbrandt could not be convicted of both armed burglary of a dwelling and armed attempted home-invasion robbery because the burglary is subsumed by the attempted home-invasion robbery conviction. Therefore, the conviction for armed burglary must be vacated.

Id. at 544. In reaching this conclusion, this court relied on two of its earlier cases which reached the same conclusion: Perez v. State, 951 So.2d 859 (Fla. 2d DCA 2006), and Coleman v. State, 956 So.2d 1254 (Fla. 2d DCA 2007), as well as the Fifth District’s decision in McAllister, 718 So.2d at 918, and the Fourth District’s decision in Black v. State, 677 So.2d 22 (Fla. 4th DCA 1996). Each of these cases relied on the language of section 775.021(4)(b)(3) — the statute relied upon by Pizzo — to determine that the burglary offense was subsumed into the home invasion robbery offense and thus constituted the “lesser” offense for purposes of double jeopardy analysis.

All of the cases relied upon by the State in this appeal to argue otherwise either pre-date Pizzo, see, e.g., Mendez v. State, 798 So.2d 749 (Fla. 5th DCA 2001); Braggs v. State, 789 So.2d 1151 (Fla. 3d DCA 2001); Barboza v. State, 786 So.2d 675 (Fla. 3d DCA 2001); Smith v. State, 741 So.2d 579 (Fla. 3d DCA 1999); Bowers v. State, 679 So.2d 340 (Fla. 1st DCA 1996), and hence no longer apply, or simply cite to pre-Pizzo authority with no analysis of whether that authority remained good law after Pizzo, see Washington v. State, 120 So.3d 650 (Fla. 5th DCA 2013); Olivera v. State, 92 So.3d 924 (Fla. 4th DCA 2012); Davis v. State, 74 So.3d 1096 (Fla. 1st DCA 2011). In light of the fact that the pr e-Pizzo cases focused on a comparison of the punishments rather than the statutory elements to reach their conclusions — an approach explicitly rejected by Pizzo — these pr e-Pizzo cases are no longer good law. And post-Pizzo cases relying exclusively on pr e-Pizzo authority cannot alter the analysis that the Pizzo decision requires.

In sum, the State in this case led the trial court astray when it convinced the court, by using pr e-Pizzo authority, that it was proper to determine the greater and lesser offenses by a comparison of their punishments rather than their statutory elements. This resulted in the trial court vacating the verdict for the greater offense rather than the lesser. Accordingly, we must vacate Tuttle’s conviction and sentence for armed burglary and remand for the trial court to resentence Tuttle based on convictions for manslaughter and attempted armed home invasion robbery.

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

LaROSE and BLACK, JJ„ Concur.


author: WARNER, J.

text:
    CONDOMINIUM ASSOCIATION OF LA MER ESTATES, INC., Appellant, v. The BANK OF NEW YORK MELLON CORPORATION, a/k/a The Bank of New York Mellon, f/k/a The Bank of New York as Trustee for the Benefit of Alternative Loan Trust 2007-0A2 Mortgage Pass-Through Certificates, Series 2007-0A2, Appellee.
    No. 4D13-17.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Rehearing Denied April 25, 2014.

      Michael Heidt of Law Office of Gable & Heidt, Hollywood, for appellant.
    Trida J. Duthiers, Joshua R. Levine and J. Randolph Liebler of Liebler, Gonzalez & Portuondo, P.A., Miami, and Karene Ty-genhof of Choice Legal Group, P.A., Fort Lauderdale, for appellee.
   EN BANC

WARNER, J.

The trial court vacated a default final judgment a year and a half after its entry on the grounds that the judgment was void, because the complaint upon which it was based failed to state a cause of action. Although the trial court was correct under the existing law from this district, we consider this case en banc to recede from our prior case law and conclude that a default judgment based upon a complaint which fails to state a cause of action is voidable, not void. Therefore, because the appellee failed to move for relief within a year of the judgment, it was not entitled to have the judgment vacated. We reverse.

Owners of a condominium in La Mer Estates executed a mortgage to BSM Financial in 2006. That mortgage went into default in 2008, and the mortgagors also defaulted on their condominium maintenance payments. Appellant, the Condominium Association of La Mer Estates, recorded a claim of lien for the unpaid assessments, filed an action to foreclose its lien, and obtained a final judgment of foreclosure in July 2009. After the foreclosure judgment but before the foreclosure sale, appellee, Bank of New York Mellon, was assigned the mortgage securing the condominium unit. The association was the only bidder at the sale and received a certificate of title to the condominium unit.

Concerned about the continuing unpaid monthly assessments, the association wrote to the bank offering to convey to it the title to the condominium, but the bank did not respond. Several months later, the association filed a complaint to quiet title to the property, alleging its own title to the property; how it acquired its title; and that the mortgage assigned to the bank constituted a cloud on the association’s title. The association alleged that the bank had no bona fide interest or claim to the property.

The association served the bank and obtained a default. Although it also obtained a default final judgment, it moved to vacate the final judgment because of concerns that service was not properly made. The court vacated the judgment, and the complaint was served again on the bank. Again the bank did not respond and the clerk entered a new default. The association filed a new motion for entry of final judgment quieting title. The bank was given notice and an opportunity to be heard but failed to appear at the hearing. The court entered a second judgment quieting title against the bank on February 10, 2011.

The bank took no action for over one and a half years. Finally, on August 31, 2012, it moved pursuant to rule 1.540(b) to vacate the quiet title judgment on grounds that it was void because the complaint failed to state a cause of action to quiet title. The bank argued that because it was void, the one year limitation which applied to the other grounds for relief under rule 1.540(b), did not apply. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1081 (Fla. 4th DCA 2000) (a motion to vacate a void judgment may be made at any time). The bank argued that a complaint to quiet title must allege not only the association’s title to the property and how it obtained title, but must also show why the bank’s claim of an interest in the property is invalid and not well founded, citing Stark v. Frayer, 67 So.2d 287, 289 (Fla.1953). The bank contended that it had a title interest superior to that of the association and that the association had not alleged facts which showed the bank’s title was invalid.

The trial court conducted a hearing and granted the motion to vacate on grounds that the judgment was void because the complaint failed to state a cause of action. The association now appeals the order which vacated the final judgment quieting title.

The association argues that the trial court erred in vacating the final judgment quieting title because the judgment was only voidable, not void. If a judgment is “void” then under rule 1.540(b) it can be attacked at any time, but if it is only “voidable” then it must be attacked within a year of entry of the judgment. Because the bank did not file its motion to vacate for over a year and a half after entry of the final judgment, the association argues that it could seek to vacate the judgment only if the judgment was void.

In Miller v. Preefer, 1 So.3d 1278 (Fla. 4th DCA 2009), we explained what constituted a void judgment and how it differed from a voidable one:

Florida courts have long drawn a distinction between a “void” judgment and a “voidable” judgment. A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person. See, e.g., Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007); Palmer v. Palmer, 479 So.2d 221, 221 (Fla. 5th DCA 1985) (“If a court has subject matter jurisdiction and that jurisdiction has been properly invoked by pleadings and properly perfected by service of process, its judgments, although erroneous as to law or fact and subject to reversal on appeal, are nevertheless not void”). A void judgment may be attacked at any time. See, e.g., M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000).
That is not the case, though, with a judgment that is merely voidable. To attack a judgment that is voidable, a challenger’s options are limited to taking a timely appeal from the judgment or filing a timely motion to set aside the judgment on one of the limited grounds for relief set forth in Florida Rule of Civil Procedure 1.540(b). See Sterling Factors Corp., 968 So.2d at 665 (“A voidable judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances, but it cannot be challenged at any time as void under rule 1.540(b)(4).”).

Id. at 1282. Despite this understanding, in several eases we have adopted the principle that a default judgment based upon a complaint which fails to state a cause of action is void. See Rhodes v. O. Turner & Co., 117 So.3d 872, 875 (Fla. 4th DCA 2013); Neuteleers v. Patio Homeowners Ass’n, 114 So.3d 299, 301 (Fla. 4th DCA 2013) (citing Lee & Sakahara Assocs., ALA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394, 396 (Fla. 4th DCA 1996)). Other courts have also agreed. See Se. Land Developers, Inc. v. All Fla. Site & Utils., Inc., 28 So.3d 166, 168 (Fla. 1st DCA 2010); Moynet v. Courtois, 8 So.3d 377, 378-79 (Fla. 3d DCA 2009) (citing Becerra v. Equity Imps., Inc., 551 So.2d 486 (Fla. 3d DCA 1989), and Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 493 (Fla. 3d DCA 1994)). These cases have relied on Becerra, 551 So.2d at 488.

In Becerra, eleven months after the plaintiff obtained a default final judgment against the defendant in multiple counts, the defendant moved to vacate the judgment both on excusable neglect grounds and because the complaint failed to state a cause of action entitling the plaintiff to treble damages for civil theft. The court reasoned that a default admits only the well pled allegations of a complaint. A plaintiff may not obtain relief not supported by the allegations of the complaint. Therefore, “[a] default judgment should be set aside where the complaint on its face fails to state a cause of action.” Becerra, 551 So.2d at 488. Despite its frequent citation for the principle that a default judgment based upon a complaint which fails to state a cause of action is void, Becerra never explicitly states that such a judgment is void. Instead, in a footnote it notes that the supreme court has held that such judgments are voidable:

FN1. In a case pre-dating Florida’s rules of civil procedure, the Florida supreme court held that a judgment entered on a complaint which failed to state a cause of action was voidable but not void, and that the trial court erred in vacating the judgment where the motion to set aside was filed nine years later. The court reasoned that the circuit court was without power to
vacate or amend the judgment which had become final “at the end of the term during which it was entered.” State ex rel. Coleman v. Williams, 147 Fla. 514, 515, 8 So.2d 152, 153 (1941). Compare Falkner v. Amerifirst Federal Sav. and Loan Ass’n, 489 So.2d 758 (Fla. 3d DCA 1986) (a judgment entered without due service of process is void and may, on a proper motion, be vacated at any time).

Id. at 489 n. 1 (emphasis supplied). The supreme court in Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926), also explained the difference between a void and voidable judgment and concluded that judgments in which the court has jurisdiction of the subject matter and persons are not void but voidable:

‘A judgment rendered by a court, having power lawfully conferred to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally.’ ...
‘Jurisdiction of the subject-matter does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case. ...
‘Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts in any case whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court by the law of its organization to deal with the abstract question.

Id. at 684, 686 (emphasis supplied) (citations omitted).

The Fifth District recognized that a judgment based upon a “non-cognizable cause of action” was voidable and not void in Krueger v. Ponton, 6 So.3d 1258 (Fla. 5th DCA 2009). It held, “Where a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities, or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.” Id. at 1261. In Krueger, the mere failure to state a cause of action did not render the default judgment void.

Although Becerra cited to Coleman, which that held that a judgment entered on a complaint which failed to state a cause of action was voidable, it noted that this supreme court opinion was decided prior to the adoption of the modern rules of civil procedure. Rule 1.540(b)(4) did not change the definition of a void judgment, and Becerra does not suggest how the rule displaces the prior case law. Under supreme court precedent, a default judgment is voidable, not void, where it fails to state a cause of action, where the court has jurisdiction both of the subject matter and the parties. We conclude that our cases which hold that such a judgment is void depart from supreme court precedent, and we should recede from them to the extent that they rely on the proposition that such a judgment is void, including Rhodes, Neuteleers, and Lee & Sakahara Associates.

The motion for relief in this case provided no other reason for vacating the judgment other than arguing that the complaint failed to state a cause of action. We hold that these allegations would render the judgment voidable, not void. The bank was properly notified of the proceedings, notified of the hearing on final judgment, and notified of the entry of the final judgment. It could have appeared in the proceedings and raised the pleading defects, or it could have raised the issue on direct appeal. “A voidable judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances, but it cannot be challenged at any time as void under rule 1.540(b)(4).” Sterling, 968 So.2d at 665.

To rule that a judgment affecting title to property is void if the complaint on which it is based failed to state a cause of action could cloud a title for years and years, rendering it unsellable. What title insurance company would hazard insuring a title containing a default final judgment in its chain if that judgment could be vacated at any time even though the defaulted party had notice of the proceedings? The uncertainty generated by declaring such judgments void is magnified when one considers that courts may differ as to what constitutes sufficient allegations to state a cause of action.

We thus reverse the order vacating the final judgment and remand for its reinstatement. By receding from our prior case law in this opinion, we are following the older supreme court holdings, as we have found no recent cases from the supreme court revising the definition of a void judgment. To the contrary, in Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the court used the same definition of a void judgment as in its prior cases. Id. at 445 (“[Wlhere a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.”). We also certify express and direct conflict with Southeast Land Developers, Inc. v. All Florida Site and Utilities, Inc., 28 So.3d 166, 168 (Fla. 1st DCA 2010), and Moynet v. Courtois, 8 So.3d 377, 378-79 (Fla. 3d DCA 2009). Because of the importance of this issue to the finality of judgments and the stability of property titles, we also believe that this is an issue of statewide importance.

Reversed and remanded for reinstatement of the final judgment.

DAMOORGIAN, C.J., STEVENSON, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE, CONNER, FORST and KLINGENSMITH, JJ„ concur.

      . We need not frame a question of great public importance, because by announcing express conflict with the opinions of other district courts of appeal, the supreme court's jurisdiction may be invoked. See Fla. R. App. P. 9.030(a)(2)(A)(iv).


author: KELLY, Judge. ' DAVIS, Chief Judge,

text:
    Michael Lindsey McADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3158.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Rehearing Denied April 11, 2014.

      Davis, C.J., filed an opinion concurring in part and dissenting in part.
    Howard L. Dimmig, II, Public Defender, and Jack W. Shaw, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge. '

Michael McAdams was convicted of murdering his wife, Lynda McAdams, and her coworker and boyfriend, Ryan Andrews. He was sentenced to two consecutive life sentences. In this appeal of his judgment and sentences, Mr. McAdams challenges the trial court’s denial of a motion to suppress his confession and evidence obtained as a result of the confession. He also challenges the trial court’s denial of a motion to suppress evidence seized from his wife’s residence. We conclude that the trial court did not err in denying the motions to suppress Mr. McAdams’ confession and the evidence found in Lynda Mc-Adams’ home; however, we must reverse the judgment and sentences because the trial court erred in denying the motion to suppress certain evidence obtained after Mr. McAdams confessed.

Lynda McAdams and Ryan Andrews were reported missing by their families. During the course of the missing persons’ investigation, a detective searching for Lynda McAdams entered her Pasco County home, and based on his observations, detectives from major crimes became involved in the investigation. The detectives contacted Mr. McAdams at his parents’ home in Hernando County and obtained his written consent to search his wife’s residence. Although Mr. McAdams no longer lived at the Pasco County home, detectives presumably sought his consent because he still co-owned the home with Mrs. McAdams.

Mr. McAdams moved to suppress the evidence seized during the search of his wife’s residence. The trial court denied the motion finding that the initial entry was justified by exigent circumstances and that the subsequent search was done with Mr. McAdams’ consent. Because we find no error in either the trial court’s factual findings or in its application of the law, we affirm without further comment the denial of the motion to suppress the evidence seized from Mrs. McAdams’ residence.

After the search of Mrs. McAdams’ residence, Hernando County detectives visited Mr. McAdams at his home and asked him if he would be willing to meet with the Pasco County detectives who were investigating his wife’s disappearance. He agreed and accompanied them to the Her-nando County Sheriffs Office to meet with the detectives from Pasco County. The entire interview, which lasted approximately two and a half hours, was- videotaped. During this interview, Mr. Mc-Adams confessed to killing his wife and Mr. Andrews. At that point the detectives advised Mr. McAdams of his Miranda rights, which he waived. He then led detectives to where he had buried the bodies of Mrs. McAdams and Mr. Andrews. He also showed them where he had left Mr. Andrews’ car, and he took them to where he had disposed of the gun he had used in the murders.

Unbeknownst to Mr. McAdams, while he was being interviewed an attorney hired by his parents had arrived at the sheriffs office.. The attorney asked that the interview be terminated and that he be allowed to speak with Mr. McAdams. The detectives conducting the interview declined both requests and continued with the interview without telling Mr. McAdams about the attorney. It was not until after Mr. McAdams had taken the detectives to the place where he had buried the bodies of his victims that the detectives told him about the attorney.

Mr. McAdams moved to suppress his confession as well as the evidence collected after he confessed. He argued that throughout the time he was at the sheriffs office he had been in custody and that his confession was obtained in violation of Miranda. He also argued that the detectives’ refusal to advise him of his attorney’s presence and desire to speak with him violated the due process provisions of article 1, section 9 of the Florida Constitution. The trial court denied the motion after concluding that Mr. McAdams was not in custody at the time he confessed and that the detectives’ delay in advising him about the attorney was not misconduct that would amount to a due process violation.

Under Miranda, statements made to the police during a “custodial interrogation” must be suppressed if the police have not informed the suspect of his constitutional rights before the interrogation. State v. Pitts, 936 So.2d 1111, 1123 (Fla. 2d DCA 2006). As we explained in Pitts,

[i]n determining “whether a suspect is ‘in custody’ for purposes of receiving of Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Whether a suspect has been subjected to such a restraint on freedom of movement depends on “how a reasonable [person] in the suspect’s position would have understood his situation.”

Id. (second alteration in original) (citation omitted). “Miranda custody determinations present mixed questions of law and fact, under which the reviewing court defers to the competent factual determinations of the trial court but analyzes de novo the application of the law to those facts.” Rigterink v. State, 2 So.3d 221, 246 (Fla.2009), vacated on other grounds, 559 U.S. 965, 130 S.Ct. 1235, 176 L.Ed.2d 175 (2010). “In this context, precedent remains a persistent guide but often plays less of a role because each custody determination depends upon the highly unique facts of the given case.” Id.

The trial court’s order details the facts developed at the suppression hearing, and it analyzes those facts using the test adopted by the Florida Supreme Court in Ramirez v. State, 739 So.2d 568 (Fla.1999). In Ramirez, the court looked at four factors to determine

whether a reasonable person in the suspect’s position would consider himself in custody: (1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Id. at 574. As we noted in Pitts, “the four-factor test must be understood as simply pointing to components in the totality of circumstances surrounding an interrogation.” 936 So.2d at 1124; see also Rigter-ink, 2 So.3d at 246 (explaining that with respect to the objective reasonable person framework for analyzing custody, the test in Ramirez is a “subsidiary four-part channeling paradigm to organize and analyze the case-specific facts that are relevant to determining whether a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave”). Pitts explains:

No factor on the Ramirez list of factors can be considered in isolation. The whole context must be considered. A factor that would militate strongly toward the conclusion that a suspect was in custody in one context might be viewed differently in a materially different factual context. The focus of the inquiry must remain on whether a reasonable person in the suspect’s position — given all the relevant circumstances — -would have understood himself to be in custody.

936 So.2d at 1124. The trial court went through each of the Ramirez factors and made the following findings:

I did take multiple opportunities to go over a lot of the information provided to me prior to today’s hearing. I’ve already mentioned on the record that I did see the entire audio and video portion of the interview. I read the files, transcripts of depositions, and the motion and memoranda and opposition and the case law, everything that was provided to me by both sides. After hearing everybody’s testimony today, it was as clear to me at the end of the day as it was in the beginning that we’ve got a couple of major issues that both sides seem to focus in on, and that carried the day for the question of the day. Obviously, the first issue was whether or not the defendant was in custody in accordance with the guidelines set out in RAMIREZ. Which I am always happy to have guidance of any sort, it makes my job a lot easier, and thank you both sides for providing the case law that you did, and I read everything thoroughly. Guidance turns my decisions basically into a mathematical formula in some cases, which is very helpful to me.
In the RAMIREZ case there’s four prongs, as you all know, that help and guide a judge to decide whether or not someone was in custody. So in going through those prongs, let’s start with the first prong, “The manner in which police summoned the suspect for questioning.”
In this case, as we all heard and testimony bore out, Mr. McAdams was brought to the Hernando County Sheriffs Office via a marked deputy vehicle. For all intents and purposes, while obviously I’m sure we all read case law where there’s no — it’s clear that defendant was coming of his own free will in those instances where he drives, he or she drives himself in his own vehicle to the police station.
In this case, after testimony from the defendant and the transporting deputy and the detective, it appears that defendant willingly went and voluntarily went with the police, the deputy, in the transport vehicle, and was not concerned that — or there was no reason for him to believe, even by the reasonable person’s standard, that he was not free to decline that ride. There was — particularly under the circumstances where the underlying initial investigation involves a missing person who happened to be married to the defendant, so by his own statements in both the interview, the taped interview and today’s testimony he indicated he wanted to be helpful and go and be helpful in any manner he could.
So Prong One, I find, indicates that, according to Prong One of RAMIREZ, that according to that he was not in custody as to that prong. The next one, “Purpose, place and manner of the interrogation.” Obviously the interview took place at the Sheriffs Office. But again as I already said, he went there voluntarily. It was in a small interview room. But it was clear from the video that the defendant was seated closest to the door, there was nothing barring his exit, the door was not locked, according to testimony. And there were two detectives present in the room with him who were both seated further away from the door than the defendant and not blocking his way. There was nothing, from what I could see in the tape, there was no one obviously standing there blocking his way, nor was there any testimony as to that other than the defendant indicated that at some point he did see two uniformed officers standing near the door. But Mr. Halkitis on cross elicited some testimony that he was not watching the door, which the videotape bears out his back was to the door. So, I find for all purposes that Prong Number Two indicates that defendant was not in custody.
The third prong is, “The extent to which the suspect is confronted with his guilt.” Now, this one there were clearly some issues raised, and I’m going to make a few finding as to that. The Defense went to considerable length and focused on showing that the Pasco detectives suspected the defendant, that the defendant killed his wife even before they began questioning him. And then on direct Detective Christensen, in her testimony, seemed to attempt to minimize her suspicions of defendant. And in this whole line of focus, everything seemed to me, that whole thing seemed somewhat incredible as to Detective Christensen’s — like I said, she seemed to minimize her suspicions.
A seasoned Major Crimes detective dealing with a missing person, and she already knows many, many things from her own observations, and now she’s sitting talking to the spouse of a missing woman, I find it very hard to believe that she did not consider Mr. McAdams a suspect. Because even lay people are subject to statistics that say, “Oh, 95 percent of homicides are all committed by someone you know.” And so again I find it very hard to believe that Detective Christensen didn’t have a pretty strong suspicion that Mr. McAdams was a suspect.
But I don’t find that really to be relevant, in the fact that it doesn’t really matter what she thought, it’s what she did, how she behaved, and whether or not she violated the third prong of RAMIREZ by threatening or acting in some manner on her suspicions. For instance, if she suddenly treated Mr. McAdams like a criminal by hollering at him, threatening him, frightening him, acting, you know any type of aggression, or even more importantly to start confronting him, as the third prong says, with the knowledge that she already had.
The testimony clearly indicates — first of all there was a search warrant obtained based on the observations at both houses — that there were some significant concerns. There was blood found, there was something that appeared to be a bullet hole, you’ve got at least one known missing person, possibly two. There was a broken cell phone, glass, dog food scattered about, a well-known very reliable employee missing out of her home for — out of her work for a couple of days without excuse. There was the pending divorce. There was all it could have gone on and on. And I don’t find that through the evidence presented that these — I find that those questions as to whether or not they threatened, the defendant was threatened, frightened or spoken to contemptuously, or whether or not he was confronted with any evidence that was going to be used against him, I find that those questions are all answered in the negative.
I watched, again, several hours — well, I watched the whole tape and hours of Detective Christensen and then Detective Arey alone, there was never any raised voices, never any threat. The only, the only incidents where anything was mentioned about evidence that had been already seen or was in hand or suspected of having was the blood and some of the clothing.
But in light of the whole circumstances and the tone of the whole interview, I don’t find that he was in custody under prong three based on the totality of the circumstances.
And finally under prong four, “Whether the suspect is informed that he is free to leave.”
The testimony was uncontroverted that he was informed that he was free to leave, at least once, possibly twice depending on whose [sic] testifying. But there was uncontroverted testimony that he was told at least once that he was free to leave.
So under the guidance of Ramirez, I find that the defendant was not in custody, at least to the point of when he’s admittedly in custody. That happened when Detective Arey read Miranda and placed him under arrest, he was clearly in custody at that point.

As did the trial court, we have viewed the entire video of Mr. McAdams’ interview with the detectives. We conclude that the trial court’s factual findings are supported by the video and by the testimony at the suppression hearing, and we agree with the trial court’s ultimate determination that Mr. McAdams was not in custody at the time he confessed to the murders.

The question remains, however, whether the detectives violated Mr. Mc-Adams’ right to due process under the Florida Constitution when they did not advise him of the presence of his lawyer. In support of his argument, Mr. McAdams relies on Haliburton v. State, 514 So.2d 1088 (Fla.1987). In Haliburton, police refused to advise a defendant that a lawyer who had been hired to represent him was in the police station and wished to speak with him. Id. at 1089. The court held that the officers’ actions violated the due process provisions of article 1, section 9 of the Florida Constitution. Id. at 1090.

We believe there is a critical distinction between this case and Haliburton. Unlike Mr. McAdams, the defendant in Halibur-ton was in custody and had been read his Miranda rights, which he had waived at the time his attorney was trying to see him. Id. at 1089. The court in Halibur-ton found the due process violation based on what it found to be misconduct by law enforcement in that it interfered with Hali-burton’s right to counsel during a custodial interrogation. Id. at 1090. Here, detectives were conducting a noncustodial interview with Mr. McAdams. Neither Hali-burton nor any other case McAdams cites holds that it is misconduct for law enforcement officers to refuse to interrupt a noncustodial interview to permit an attorney access to a suspect who has voluntarily agreed to be interviewed, and we decline to do so here. However, we certify the following question to be of great public importance:

DOES AN ADULT SUSPECT WHO IS NOT IN CUSTODY BUT VOLUNTARILY ENGAGES IN A LENGTHY INTERVIEW IN AN INTERROGATION ROOM AT A LAW ENFORCEMENT OFFICE HAVE A DUE PROCESS RIGHT TO BE INFORMED THAT A LAWYER HAS BEEN RETAINED BY HIS FAMILY AND IS IN THE PUBLIC SECTION OF THE LAW ENFORCEMENT OFFICE AND WISHES TO TALK TO HIM?

Our ability to distinguish Haliburton, however, extends only to the point at which Mr. McAdams confessed. After he confessed and received his Miranda rights he was admittedly in custody. The State nevertheless attempts to distinguish Hali-burton by pointing to the fact that the law enforcement officers in that case refused access to the attorney even in the face of a court order — only relenting after a second court order. While the violation of the court order was obviously pertinent to the outcome in Haliburton, as we read the supreme court’s opinion it does not appear to us that the violation of the court order was determinative of the question of whether law enforcement’s conduct rose to the level of a violation of due process. Accordingly, we conclude that under Hali-burton, any evidence collected after detectives read Mr. McAdams his Miranda rights until they told him about the attorney was collected in violation of Mr. Mc-Adams’ right to due process under the Florida Constitution. Pursuant to Hali-burton, that evidence should have been suppressed.

Accordingly, we reverse Mr. McAdams’ judgment and sentences and remand for further proceedings consistent with this opinion.

ALTENBERND, J., Concurs.

DAVIS, C.J., Concurs in part and dissents in part with opinion.

DAVIS, Chief Judge,

Concurring in part and dissenting in part.

I respectfully dissent from the majority’s opinion to the extent that it finds no error in the trial court’s denial of Mr. McAdams’ motion to suppress the incriminating statements he made to law enforcement prior to Miranda warnings being administered. However, I do concur with the majority’s conclusion that Mr. Mc-Adams’ convictions and sentences must be reversed because the trial court erred in denying Mr. McAdams’ motion to suppress evidence obtained by police after Miranda warnings were given but prior to detec-fives informing him that an attorney retained to represent him had come to the sheriffs office to speak with him. I also concur with the majority’s conclusion that the trial court did not err in denying Mr. McAdams’ motion to suppress physical evidence found in Mrs. McAdams’ home. Finally, I concur with the certification of the question of great public importance regarding the applicability of Haliburton v. State, 514 So.2d 1088 (Fla.1987) (Haliburton II).

With respect to Mr. McAdams’ pre-Mi-randa confession, I believe that the record is clear that Mr. McAdams was in custody when he made these statements and that, as such, the trial court should have suppressed those statements.

Mr. McAdams was tried for the premeditated murder of his estranged wife, Lynda McAdams, and her friend, Ryan Andrews. Mrs. McAdams and Mr. Andrews were first noticed to be missing when they failed to report to work on Monday, October 19, 2009. The Pasco County Sheriffs Office began its investigation of the missing persons on Wednesday, October 21, 2009, by visiting the McAdams’ residence on Palimi-no Road in Dade City. On the morning of Friday, October 23, 2009, upon the request of the Pasco County Sheriffs Office, deputies from the Hernando County Sheriffs Office encountered Mr. McAdams at his new residence on Glover Road in Hernan-do County. They advised Mr. McAdams that Pasco County detectives wanted to talk with him as a part of their investigation into the disappearance of his wife and her friend. Mr. McAdams voluntarily accompanied the detectives to the Hernando County Sheriffs Office, where he waited for the arrival of two detectives from Pas-co County. Mr. McAdams’ interview with the Pasco County detectives, one male and one female, lasted nearly three hours, during which time he ultimately confessed to killing Mrs. McAdams and Mr. Andrews.

At trial, a video of Mr. McAdams’ statement was played for the jury. A Florida Department of Law Enforcement expert also testified that a blood stain on Mr. McAdams’ shirt contained human DNA that matched the DNA of Mrs. McAdams and that a blood stain on Mr. McAdams’ shorts contained DNA that matched the DNA of Mr. Andrews. Further testimony showed that these two items of clothing were found in Mr. McAdams’ Hernando County residence.

Prior to.trial, Mr. McAdams sought to suppress his confession and the evidence discovered as a result of that confession, i.e., the victims’ bodies. At the suppression hearing, Mr. McAdams first argued that suppression was warranted because during his interrogation an attorney hired by his parents to represent him had arrived at the sheriffs office requesting to see him. The attorney, Douglas Eden-field, was turned away, and Mr. McAdams was not informed of his presence until after Mr. McAdams had confessed and led detectives to the victims’ bodies. Counsel for Mr. McAdams argued that pursuant to the Florida Supreme Court’s decision in Haliburton II, 514 So.2d 1088, the police conduct of concealing from Mr. McAdams the fact that an attorney retained to represent him had been present and had requested to see him was a violation of the due process rights guaranteed Mr. Mc-Adams under article 1, section 9 of the Florida Constitution. '

The State acknowledged that Halibur-ton II was applicable if Mr. McAdams was in custody. However, the State maintained that Mr. McAdams was not in custody.

Mr. McAdams’ counsel disagreed that Haliburton II only applied to one who was in custody. Nevertheless, he maintained that Mr. McAdams was in fact in custody at the time or soon after Mr. Edenfield arrived at the station. Specifically, he argued that although the interview began as a voluntary conversation, once the detective began to confront Mr. McAdams with the evidence of his guilt, the interrogation turned from voluntary to custodial. Counsel argued that the detectives’ failure to advise Mr. McAdams that Mr. Edenfield was attempting to communicate with him and their refusal to allow Mr. Edenfield access to Mr. McAdams was a violation of Mr. McAdams’ constitutional rights requiring the suppression of the statement. Counsel further argued that pursuant to the “fruit of the poisonous tree” doctrine, any evidence discovered based on the illegally obtained statement must also be suppressed.

Additionally, Mr. McAdams’ counsel argued that without even reaching a decision on the applicability of Haliburton II, suppression should be granted because Mr. McAdams was in custody when he gave his statement and was not given the warnings required by Miranda. I agree.

Mr. McAdams was in custody when he made his incriminating statements, and therefore the detectives violated his Miranda rights. Furthermore, by failing to inform Mr. McAdams that a lawyer retained to represent him had been present at the sheriffs office and had requested to speak to him, the police violated Mr. Mc-Adams’ due process rights under the Florida Constitution. Accordingly, I believe that the trial court erred in failing to suppress Mr. McAdams’ confession.

Miranda Violation

In determining whether a suspect is in custody, “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” This inquiry is approached from the perspective of how a reasonable person would have perceived the situation.

Roman v. State, 475 So.2d 1228, 1231 (Fla. 1985) (citation omitted) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)) (some internal quotation marks omitted). In other words, the question is whether a reasonable person would believe that he was free to leave.

Roman provides several factors to consider in making such a determination, including whether a person was told he was free to leave or was under arrest. Id. Additionally, “the length of time of the interrogation, in some cases ... might make a difference.” Id. Likewise, the location of the interrogation may impact the custody determination, although “it does not have to be found that the environment in which [a suspect] was questioned was devoid of coercion” in order to make a finding that the suspect was not in custody. Id. at 1232.

In the instant case, Mr. McAdams was not told that he was under arrest, but he also was not told that he was free to leave. The interview lasted nearly three hours, but this was not unreasonable considering the nature of the investigation, and Mr. McAdams was allowed to take a break. Finally, beyond the fact that the interrogation took place at the sheriffs office, there was nothing so coercive about the location that a reasonable person would have believed he was being detained. As such, the answers to the Roman questions seem inconclusive to the question of custody in this case.

However, subsequent to Roman, the Florida Supreme Court drew a clearer picture of how to determine when one is in custody in Ramirez, 739 So.2d at 574. There, the court set forth a four-prong test that “provides guidance in making the determination whether a reasonable person in the suspect’s position would consider himself in custody.” Id. Under that test, the court should consider

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Id. (citing State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997)).

Applying this test to the facts of the instant case indicates that Mr. McAdams’ questioning did not begin as a custodial interrogation. With regard to the manner in which Mr. McAdams was summoned to questioning, he was asked to meet the deputies at the sheriffs office and agreed to do so. The deputies offered him a ride, which he accepted. He was not arrested or in custodial detention at that time. As to the purpose, place, and manner of the questioning, Mr. McAdams was questioned in an interrogation room at the Hernando County Sheriffs office. Nothing about the room itself suggested that Mr. McAdams was in custody, and Mr. McAdams was positioned next to the door with the detectives beginning the interview seated at a reasonable distance for normal conversation. Initially, the questioning was conversational and factual, and during the first part of the interview, Mr. McAdams was not confronted with any evidence, nor was he told that he could or could not leave. In fact, at one point, the detectives took a break and Mr. McAdams was allowed to go down the hall to use the restroom. Based on these facts, I would agree that during the first two hours of the interview, Mr. McAdams was not in custody.

However, at roughly two hours and five minutes into the interview, the nature of the meeting changed dramatically. The video shows that the male detective left the interview room at 2:03 p.m. and returned at 2:04 p.m. He then asked the female detective to leave the room so that Mr. McAdams and he could be alone. Following the female detective’s exit, the male detective moved in closer to Mr. McAdams and began to talk to him about the effect a long investigation would have on his parents. The male detective then stated that he had been to Mr. McAdams’ home in Hernando County and to Mrs. McAdams’ residence in Pasco County. He advised that “the evidence ... is really, really strong” and that detectives found “tons of blood evidence and DNA evidence,” including blood on shorts and a t-shirt belonging to Mr. McAdams. The male detective stated, “I’ve already got a pretty dang good idea of what went down.” When Mr. McAdams protested that the blood on his clothing was rat blood from feeding his snakes, the male detective retorted that the blood had been tested and was determined to be human blood with DNA. He told Mr. McAdams, “This isn’t gonna go away.” He urged Mr. McAdams to tell him what happened. When Mr. McAdams was not forthcoming, the male detective reiterated, “I was at your house until, I think, 3:30 this morning. It’s all there, and it won’t go away.” Mr. McAdams responded that he needed a couple of days to think about things, but the male detective advised, “Regretfully, everything is already set in motion.”

Mr. McAdams asked, “Am I gonna be able to leave here today?” The male detective responded, “I don’t know, Mike. I don’t know.” Mr. McAdams then suggested that possibly his wife’s friend could have killed her. He then began to open up, stating that “[w]hatever happened out there Sunday, I was drunk.” When Mr. McAdams did not immediately continue with details, the male detective asked, “What are your intentions, Mike?” Mr. McAdams responded that he hoped his wife would come home, to which the male detective responded, “We both know that’s not the case.” Mr. McAdams asked, “How do you know that?” The male detective answered, “From all that evidence.” Mr. McAdams asked for another drink, and the male detective left the room for two minutes. Once the male detective returned, Mr. McAdams asked him, ‘What happens now?” The male detective responded, “You and I, we talk it out.” After a minute or two more, at 2:27 p.m., Mr. Mc-Adams began to make his incriminating statement, detailing the shooting of the victims and ultimately drawing a map to show where he buried their bodies.

Viewing these facts with regard to the four-prong Ramirez test, I conclude that when the male detective returned to the room at 2:04 p.m., the nature of the questioning changed so that a reasonable person would have concluded that he was no longer free to leave and was now being held in custody. First, with regard to the third-prong of the test — “the extent to which the suspect is confronted with evidence of his or her guilt,” — the male detective told Mr. McAdams that the evidence against him was “really, really, strong,” that detectives had gathered “tons of blood evidence and DNA evidence,” that “[t]his isn’t going away,” and that he knew that Mrs. McAdams was not going to return home based on “all that evidence.” With regard to the second-prong of Ramirez— “the purpose, place, and manner of the interrogation” — the male detective informed Mr. McAdams that he had a pretty good idea of what happened, and the purpose of the interrogation changed to “[y]ou and I, we talk it out.” Additionally, the manner of the interrogation changed from an easy conversation to the male detective pulling his chair right up to Mr. McAdams so that they sat in close proximity to one another, necessarily intensifying the exchange. Finally, considering prong four of the Ramirez test — “whether the suspect is informed that he or she is free to leave the place of questioning” — when Mr. Mc-Adams asked for a couple of days to think things out, the male detective indicated that “everything was already set in motion.” Mr. McAdams then directly asked the male detective, “Am I gonna be able to leave here today?” The detective equivocated, answering, “I don’t know, Mike.” While this may not be a clear indication that Mr. McAdams was not free to leave, only a few minutes later Mr. McAdams asked, “What happens now?” The male detective responded, “You and I, we talk this out,” indicating that Mr. McAdams was not free to leave but rather had to stay there and talk to the detective. All of this occurred between 2:05 and 2:27 p.m.; however, Miranda warnings were not administered until 2:42 p.m.

Considering the totality of the circumstances that occurred after the female detective left the room, as Pitts, 936 So.2d at 1124, directs, I must conclude that a reasonable person in Mr. McAdams’ position would not have felt free to terminate the interrogation and leave but rather would have understood himself to be in custody. See also Rigterink, 2 So.3d at 246; Kessler v. State, 991 So.2d 1015, 1020 (Fla. 4th DCA 2008) (“Interrogation takes place for Miranda purposes ‘when a person is subjected to express questions, or other words or actions, by a state agent that a reasonable person would conclude are designed to lead to an incriminating response.’” (quoting Traylor v. State, 596 So.2d 957, 966 n. 17 (Fla.1992))).

Because Mr. McAdams was held in custody and interrogated without the benefit of being informed of his Miranda rights, I believe his confession should have been suppressed.

Due Process as Guaranteed by the Florida Constitution

Furthermore, pursuant to Haliburton II, the due process rights guaranteed to Mr. McAdams under the Florida Constitution were violated when his attorney was denied access to see him. The facts regarding Mr. Edenfield’s presence at the Hernando County Sheriffs Office prior to Mr. McAdams making his incriminating statement are not in dispute. Mr. Eden-field arrived at the Hernando County Sheriffs Office at around 2:00 p.m. He advised the deputy at the front desk that he was an attorney and had been retained by Mr. McAdams’ parents to represent Mr. McAdams. Mr. Edenfield testified that the deputy at the front desk walked back into an area behind a closed door and then returned and advised him that his client was in the major crimes area of the office and that he therefore could not see him. Mr. Edenfield then asked if he could get any communication to his client by telephone, email, or even a “note under the door,” but the deputy advised him that such was not possible. Mr. Edenfield then presented his Florida Bar card and asked that his presence be registered and the time be noted, but the deputy refused the request. Mr. Edenfield then asked the deputy to advise the detectives that he was requesting that any and all questioning be terminated until he could speak with his client. He then returned to his office and prepared a letter making the same request and faxed it to the sheriffs office.

At the suppression hearing, both detectives acknowledged that they knew an attorney was present at the sheriffs office and that he was asking to see Mr. Mc-Adams before Mr. McAdams made his incriminating statements. They also acknowledged that they made the conscious decision to deny the attorney access to his client and to delay advising Mr. McAdams that his attorney was trying to communicate with him. The female detective testified that it was her understanding that there was no need to advise Mr. McAdams of the attorney’s presence because when she learned that the attorney was outside, Mr. McAdams was not in custody as he had not made any incriminating statements. The male detective testified that when he reentered the room and began confronting Mr. McAdams with the evidence of his guilt, it was his understanding that the attorney already had left and that therefore he need not advise Mr. Mc-Adams of the attorney’s attempt to see him.

Mr. Edenfield testified that he arrived at the station at 2:04 p.m. The video timer indicates that the male detective— who candidly admitted he knew of the attorney’s presence when he resumed his discussions with Mr. McAdams — reentered the room at 2:05 p.m., asked the female detective to leave him alone with Mr. Mc-Adams, and then began to confront Mr. McAdams with the blood evidence. As such, the detective clearly began to seek the details of Mr. McAdams’ involvement without advising Mr. McAdams that his attorney was attempting to communicate with him.

Although the detectives advised Mr. Mc-Adams of his right to an attorney when they administered Miranda warnings at 2:42 p.m., they did not tell him that Mr. Edenfield attempted to contact him by coming to the sheriffs office. Following his statement, Mr. McAdams went with the detectives to Pasco County and showed them where the bodies were buried, following which the detectives and Mr. Mc-Adams returned to Mr. McAdams’ home in Hernando County. It was while they were at the home that Mr. McAdams was first told that his attorney had tried to communicate with him.

Haliburton I

These facts are similar to the facts of the Haliburton cases. See Haliburton v. State, 476 So.2d 192 (Fla.1985) (Haliburton I). Mr. Haliburton was taken to the police station at 6:30 a.m. for questioning regarding a residential burglary and murder. He was advised of his Miranda rights and questioned until 9:30 a.m. He was later questioned again and submitted to a polygraph exam. His sister arranged for an attorney to represent him. The attorney called the .police station and requested that the questioning be stopped. The attorney arrived at the station at about 4:00 p.m. and asked to speak with his client. Police officials denied this request. From 3:56 p.m. until about 4:20 p.m., Mr. Haliburton gave a statement admitting that he broke into the residence and saw the victim’s body but denying that he killed the victim.

Upon being denied access to his client, the attorney contacted a judge, and at 4:18 p.m., police officials received a telephonic court order requiring the police to allow the attorney access to his client. However, it was not until a second telephonic court order was received that police officials allowed the attorney to see Mr. Hali-burton. At the subsequent jury trial, the taped statement was played, and Mr. Hali-burton was convicted of burglary and first-degree murder.

On review, the Florida Supreme Court concluded that the police officials’ denial of the attorney’s request to speak with Mr. Haliburton invalidated the voluntary nature of Mr. Haliburton’s waiver of his Fifth Amendment rights. “In order for the right to counsel to be meaningful, a defendant must be told when an attorney who has been retained on his behalf is trying to advise him.” Id. at 194. The fact that the attorney had been retained by family without the suspect’s knowledge did not invalidate the ruling. Id. “Our holding turns on. the fact that the attorney retained by appellant’s sister on his behalf was in the station requesting to speak with appellant. The failure of the police to convey this information to appellant violated his otherwise valid waiver.” Id.

However, the State sought certiorari review by the United States Supreme Court, which vacated the Florida Supreme Court’s opinion, remanding the case “for further reconsideration in light of Moran v. Burbine, 475 U.S. 412,106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).” See Florida v. Haliburton, 475 U.S. 1078, 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986) (parallel citations omitted).

Moran v. Burbine

In Burbine, 475 U.S. 412,106 S.Ct. 1135, the defendant was suspected of committing a burglary in Cranston, Rhode Island. He was arrested and taken into custody. That same evening, without the defendant’s knowledge, his sister contacted the public defender’s office to obtain legal counsel for him for the burglary charge. After the defendant was taken into custody, officials determined that he might have information or involvement in a murder that had taken place in Providence, Rhode Island, earlier that year. The sister and the public defender were unaware of the murder case.

An assistant public defender telephoned the police department to advise that she would act as counsel for the defendant if the officials intended to question him that evening. She was informed by the police official that the defendant would not be questioned until the next morning. The attorney, however, was not informed that the defendant was also to be questioned concerning the murder case. Less than an hour after the telephone call, without informing the attorney of the change in plans and without informing the defendant that the attorney had made inquiry, the police questioned the defendant in a series of interviews. At the outset of each interview, the defendant was advised of his Miranda rights, and each time, he waived the same verbally and in writing. During all of these interviews, the defendant was unaware of his sister’s obtaining counsel for him, and at no time did he request the assistance of counsel. The statements the defendant gave during these interviews were used at trial, and Burbine was convicted of the murder charge in Providence, Rhode Island. The Rhode Island Supreme Court affirmed his conviction, rejecting his contention that the police had violated his Fifth and Fourteenth Amendment rights by failing to allow his attorney to have access to him. State v. Burbine, 451 A.2d 22, 31 (R.I.1982).

The United States Supreme Court determined that the defendant validly waived his right to the presence of counsel. 475 U.S. at 421, 106 S.Ct. 1135. Furthermore, the Court observed that “[ejvents occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id. at 422, 106 S.Ct. 1135. The Court then concluded:

Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Id. at 422-23,106 S.Ct. 1135. Accordingly, the Court determined that the failure to allow the attorney access to the individual did not render the statement involuntary or violate the individual’s Miranda rights.

The Court went on to conclude that the denial of access also did not deprive the individual of the fundamental fairness guaranteed him by the Due Process Clause of the Fourteenth Amendment of the United States Constitution: “[0]n these facts, the challenged conduct falls short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant federal intrusion into the criminal processes of the States.” Id. at 433-34, 106 S.Ct. 1135. However, the Court specifically stated that “[njothing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Id. at 428, 106 S.Ct. 1135.

Haliburton II

On remand, the Florida Supreme Court in Haliburton II, 514 So.2d at 1090, noted this portion of the Burbine opinion and reaffirmed its original opinion reversing Mr. Haliburton’s conviction because the police conduct violated the due process rights guaranteed him by article 1, section 9 of the Florida Constitution.

[D]ue process requires fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizen’s cardinal constitutional protections-[Pjolice interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits .... Just as the government cannot conceal from a suspect material and exculpatory evidence, so too the government cannot conceal from a suspect the material fact of his attorney’s communication.

Haliburton II, 514 So.2d at 1090 (second alteration in original) (quoting Burbine, 106 S.Ct. at 1165-66 (Stevens, J., dissenting)).

The State attempts to distinguish the facts of Haliburton II by pointing out that in that case the police not only denied the attorney access to his client but continued to do so in the face of a telephonic court order to the contrary. See id. Although the Haliburton II court did note the police’s refusal to comply with the court’s telephonic order, it did so only after first stating the following:

[Tjhe attorney in the instant case not only telephoned the police station as to the status of his client, but subsequently arrived at the station and requested access. ... “[T]o pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an indentified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run.”

Id. (quoting State v. Haynes, 288 Or. 59, 602 P.2d 272, 278 (1979)). As such, I conclude that the conduct found to be improper in Haliburton II was the failure to allow the attorney access, not the failure to obey the telephonic order. Accordingly, I would read Haliburton II to establish a bright line in Florida that the failure by law enforcement officials to advise a suspect that his attorney is attempting to contact him and to refuse an attorney who is present access to his client violates the guarantee of due process provided for in article I, section 9 of the Florida Constitution.

Smith v. State

The State here also relies on Smith v. State, 699 So.2d 629 (Fla.1997), for the proposition that the police were not required to inform Mr. McAdams of Mr. Edenfield’s presence at the sheriffs office. Smith, however, is factually distinguishable from the instant case. In that case, Mr. Smith was under indictment for first-degree murder and several other offenses. An arraignment was held for codefendants who were in custody at a time when Mr. Smith was not. Mr. Smith was not present at the hearing, but an assistant public defender who previously had represented Mr. Smith on an unrelated matter volunteered to appear on behalf of Mr. Smith. She noted the conflict her office had in providing representation for Mr. Smith in the murder charge, and the trial court appointed private counsel to represent Mr. Smith if and when he was taken into custody. This appointed attorney filed a written plea of not guilty and a demand for discovery prior to his having contact with Mr. Smith and prior to Mr. Smith being taken into custody.

It was almost a month later before Mr. Smith was arrested. At that time, he was given Miranda warnings, waived his rights, and submitted to questioning. The day after his arrest, he was again questioned and again waived his Miranda rights. During this questioning, he confessed. Mr. Smith later challenged the admissibility of the confession, arguing that the failure to advise him of the appointment of his attorney invalidated the waiver of his Miranda rights, violated his right to counsel as guaranteed by the Sixth Amendment, and violated the due process rights guaranteed him under the Florida Constitution. The Florida Supreme Court rejected these arguments. On the due process issue, the court made the specific finding that because there had been no prior finding of Mr. Smith’s indigence, the trial court’s appointment of counsel was an “unauthorized by section 27.52, Florida Statutes (1989), and was thus a nullity.” Id. at 639. The court concluded that Hali-burton II did not control the decision:

We distinguish Haliburton on two bases. First, Haliburton did not confront the question of waiver under the Sixth Amendment. Second, we find the offensive police misconduct which compelled the decision in Haliburton was not present in this case. Rather, we find this case similar to Harvey v. State, 529 So.2d 1083,1085 (Fla.1988), in which we found no due process violation when police denied the public defender access to the defendant when the public defender voluntarily went to the jail after hearing about the defendant’s arrest to see if the defendant needed a lawyer.

Id.

Because Smith is factually distinguishable from Haliburton II on the basis that there was no valid attorney/client relationship, Smith is also distinguishable from the instant case. Here, Mr. Edenfield was retained by Mr. McAdams’ family, and the attorney/client relationship was established even though Mr. McAdams was not aware of his family’s actions. See Haliburton II, 514 So.2d at 1090 (“ ‘[Tjhere can be no constitutional distinction ... between a deceptive misstatement and the concealment by the police of the critical fact that an attorney retained by the accused or his family has offered assistance, either by telephone or in person.” (emphasis added) (quoting Burbine, 475 U.S. at 453, 106 S.Ct. 1135 (Stevens, J. dissenting))).

Accordingly, I conclude that based on Haliburton II, the trial court erred in denying the motion to suppress the statement in that the detectives’ failure to advise Mr. McAdams of his attorney’s efforts to contact him and to allow the attorney access to his client violated the due process rights guaranteed Mr. McAdams by article 1, section 9 of the Florida Constitution. See also State v. Allen, 548 So.2d 762 (Fla. 1st DCA 1989). I also conclude that Mr. McAdams’ interrogation became custodial for Miranda purposes when the detective began to confront him with the evidence as described above.

Therefore, I concur with the majority’s reversal of Mr. McAdams’ judgments and sentences based on the trial court’s erroneous denial of his motion to suppress evidence obtained post-Miranda but prior to his being informed that his attorney had been present. I also concur that the trial court did not err in denying the motion to suppress evidence found at Mrs. McAdams’ residence, and I concur with certifying the question of great public importance regarding the applicability of Haliburton II to the questioning of an accused who is not in custody. However, I dissent with regard to the majority’s conclusion that the trial court did not err in denying Mr. McAdams’ motion to suppress the incriminating statements he made prior to the detectives advising him of his rights under Miranda.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. t602, 16 L.Ed.2d 694 (1966).

      . The residence was owned by Mr. and Mrs. McAdams as tenants by the entirety. Mr. McAdams had moved to Hernando County due to the marital difficulties the couple was experiencing. The property was in foreclosure, and Mrs. McAdams was to continue to reside there until the foreclosure sale was completed.

      . This is noted only as a means of differentiating one detective from the other.

      . The prosecutor stated, "So we look at the proposition that Haliburton applies if the defendant is in custody. And I have no quarrel with that, I think that is an accurate statement of the law.”

      . Mr. McAdams argues on appeal that he was accompanied to the restroom by the two detectives and an additional deputy, thus showing that he was not free to leave. However, my review of the video of the interview supports the State’s argument that the Pasco County detectives who were doing the questioning did not know where the restrooms were in the Hernando County Sheriff’s Office and that the Hernando County deputy was showing Mr. McAdams and the two detectives where to find the restrooms.

      . The video of Mr. McAdams’ interview indicates that he sat alone in' the interrogation room from 11:09 a.m. until the Pasco County detectives entered at 11:55 a.m. Actual questioning began just before noon.

      .Mr. McAdams' parents contacted Mr. Eden-field's office and retained the firm to represent Mr. McAdams in conjunction with the investigation into the disappearances of Mrs. McAdams and Mr. Andrews. By this time, Mr. McAdams’ father already had informed police that Mr. McAdams had been asking about obtaining a gun from his father and had appeared to the father to be depressed. Although Mr. McAdams' father did not give the police any information that directly implicated Mr. McAdams in the disappearance, it did raise concern as to his involvement.

      . At the suppression hearing, the female detective testified that at the time, she did not necessarily believe that Mr. McAdams was a suspect. The trial judge concluded that although she did not consider that testimony credible, the real issue was what a reasonable person in the suspect’s position would have believed under these circumstances, not the state of mind of the detective.

      . We note that there is a time discrepancy between Mr. Edenfield’s testimony and the video timer. However, in light of the male detective’s testimony, the discrepancy is without significance.

      . Procedurally, the Burbine case came before the United States Supreme Court on review of a petition for writ of habeas corpus originally filed in the United States District Court, District of Rhode island. See Burbine v. Moran, 589 F.Supp. 1245 (D.C.R.I.1984). After the First Circuit reversed the denial of the habeas petition, 753 F.2d 178 (1st. Cir. 1985), the United States Supreme Court granted certiorari, 471 U.S. 1098, 105 S.Ct. 2319, 85 L.Ed.2d 838 (1985).

      . I would also note that the Smith court's description of the ruling in Haliburton II makes no reference to the telephonic court orders. As such, by the supreme court’s own interpretation, Haliburton II was not premised on the disregarding of the telephonic court orders as the dispositive conduct that resulted in a finding of a state due process violation.