author: Wetherell, J.

text:
    Robert K. ROBINSON, Appellant, v. COMMISSION ON ETHICS, Appellee.
    No. 1D17-2187
    District Court of Appeal of Florida, First District.
    March 29, 2018 Rehearing Denied May 4, 2018
    Mark Herron and Robert J. Telfer of Messer Caparello, P.A., Tallahassee for Appellant.
    Pamela Jo Bondi, Attorney General, and Elizabeth A. Miller, Assistant Attorney General, Tallahassee for Appellee.
   Wetherell, J.

Robert K. Robinson appeals the final order and public report in which the Commission on Ethics recommended a $10,000 civil penalty and a public censure and reprimand for ethical violations committed by Robinson while he was serving as a contracted city attorney. We affirm the portion of the order finding that Robinson violated section 112.313(6), Florida Statutes (2014), because competent substantial evidence supports that finding, but we reverse the portion of the order finding that Robinson violated section 112.313(16)(c) because the Commission misconstrued that statute. We remand the case to the Commission for reconsideration of the penalty.

I

Robinson served for more than 13 years as the city attorney for the City of North Port pursuant to lucrative contracts between the City and Robinson's law firms.

The 2012-14 contract, for example, provided a monthly retainer of $28,333 (which equates to $340,000 per year) plus travel and other expenses.

Robinson's arrangement as the contracted city attorney ended in mid-September 2014 when the City hired an in-house city attorney. A couple of months before his contract as city attorney was scheduled to end, Robinson drafted and presented ordinances to the city commission to create the positions of Zoning Hearing Officer and Code Enforcement Special Magistrate. Robinson then successfully persuaded the city commission to appoint him to these positions without considering anyone else because, as he told the city commission, he was "uniquely qualified" for the positions and the appointments had to be made immediately.

These appointments formed the basis of a complaint filed with the Commission by a city resident. Commission staff investigated the complaint, and based on the investigation, the Commission found probable cause to believe that Robinson violated section 112.313(3), (6), (7), and (16) by "providing counsel and recommendations to the City Commission regarding the adoption of [the ordinance] requiring the appointment of a Zoning Hearing Officer and encouraging the City Commission to amend ... the City Code to replace the Code Enforcement Board with a Code Enforcement Special Magistrate and offering himself for consideration for the position of Zoning Hearing Officer as well as Special Magistrate."

Based on the finding of probable cause, the Commission referred the case to the Division of Administrative Hearings to appoint an administrative law judge (ALJ) to conduct a "public hearing." See § 112.324(3), Fla. Stat.; Fla. Admin. Code R. 34-5.010. After a two-day hearing, the ALJ issued a detailed recommended order finding that Robinson did not violate section 112.313(3) or (7) but that he did violate section 112.313(6) and (16)(c). With respect to section 112.313(6), the ALJ explained:

Based upon his years of service to the City and based upon the fact that [Robinson] generally had the majority of the Commissioners on his side when he made recommendations for action to be taken, [Robinson]'s recommendations with respect to the City Commission hiring him as both the Zoning Hearing Officer and the Special Magistrate put him in an advantageous position with respect to securing those two contracts.... By proceeding with the ordinances at the meetings while he was still under contract as the City Attorney, [Robinson] left the clear impression that he had a personal pecuniary interest in the outcome of the vote on the two ordinances. By offering his services at the 11th hour as the best qualified candidate for the Zoning Hearing Officer position, the obvious conclusion an outsider to the process would make is that [Robinson] created an unfair advantage for himself and his firm.

And, with respect to section 112.313(16)(c), the ALJ explained:

When [Robinson] continued to represent the City regarding the two ordinances that created new positions with the City, he violated section 112.313(16)(c), because the position he sought was for a "private individual or entity" since both [Robinson] and [his law firm] no longer would be either the City Attorney or the local government attorney ... when their contract expired. He was thus acting on behalf of a private individual or entity since the positions he sought to assume after adoption of the ordinances were for him or his firm once they became private citizens as to the City ....

Based on these violations, the ALJ recommended a $10,000 civil penalty-$5,000 for each violation.

Robinson filed exceptions to the recommended order in which he argued, among other things, that (1) the Commission failed to prove that he violated section 112.313(6) because the ALJ did not expressly find, and the evidence did not establish, that he acted "corruptly," and (2) the Commission failed to prove that he violated section 112.313(16)(c) because other provisions of subsection (16) expressly authorized him to refer business to his law firm. The Commission-with no noted dissent -rejected Robinson's exceptions and adopted the ALJ's findings that Robinson violated section 112.313(6) and (16)(c), and based on these violations, the Commission recommended that the Governor impose a $10,000 civil penalty and also publicly censure and reprimand Robinson.

This timely appeal followed.

II

We have jurisdiction to review the Commission's final order and public report even though it merely recommends the imposition of a penalty. See § 112.3241, Fla. Stat. ("Any final action by the commission taken pursuant to [part III of chapter 112] shall be subject to judicial review in a district court of appeal upon the petition of the party against whom the adverse opinion, finding, or recommendation is made."); cf. Rivera v. Comm'n on Ethics , 195 So.3d 1177 (Fla. 1st DCA 2016) (holding that the appellant's constitutional challenge to the statute authorizing the House Speaker to impose the penalties recommended by the Commission was not yet ripe for judicial review, but reviewing-and summarily rejecting-the appellant's argument that his due process rights were violated in the proceedings that culminated in the Commission's final order and public report).

Our review of the Commission's final order and public report is governed by the standards in section 120.68: the factual findings are reviewed for competent substantial evidence, see § 120.68(7)(b), Fla. Stat.; Blackburn v. Comm'n on Ethics , 589 So.2d 431, 436 (Fla. 1st DCA 1991) ; the legal conclusions are reviewed de novo , see § 120.68(7)(d), Fla. Stat.; Brown v. Comm'n on Ethics , 969 So.2d 553, 556 (Fla. 1st DCA 2007) ; and the recommended penalty is reviewed for an abuse of discretion, see § 120.68(7)(e), Fla. Stat.; Criminal Justice Standards & Training Comm'n v. Bradley , 596 So.2d 661, 664 (Fla. 1992). And, pursuant to section 120.68(8), the order must be affirmed "[u]nless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of [ section 120.68 ]."

A

In his first issue on appeal, Robinson contends that the Commission erred in finding that he violated section 112.313(6) because the evidence does not establish that he acted "corruptly" as required by the statute. We disagree.

Section 112.313(6) provides in pertinent part:

No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position ... to secure a special privilege, benefit, or exemption for himself, herself, or others.

(Emphasis added.) The term "corruptly" is defined to mean "done with a wrongful intent and for the purpose of obtaining ... any benefit ... which is inconsistent with the proper performance of [the respondent's] public duties." § 112.312(9), Fla. Stat.; see also Siplin v. Comm'n on Ethics , 59 So.3d 150 (Fla. 5th DCA 2011) ; Bennett v. Comm'n on Ethics , 871 So.2d 924, 926 (Fla. 5th DCA 2004). Case law has construed this provision to require proof that the respondent acted "with reasonable notice that [his or] her conduct was inconsistent with the proper performance of [his or] her public duties and would be a violation of law or the code of ethics." Siplin , 59 So.3d at 151-52 (quoting Blackburn , 589 So.2d at 434 ).

Competent, substantial evidence supports the ALJ's implicit finding that Robinson acted corruptly. Specifically, the ALJ found, and the record supports, that Robinson held a position of great influence with the city commission as the long-serving city attorney and that around the same time he lost his long-time position as city attorney, he persuaded the city commission to create and appoint him to the new positions of Zoning Hearing Officer and Code Enforcement Special Magistrate. Robinson did not merely suggest that he should be considered for the two positions, but rather he wielded substantial influence over the drafting of the ordinances creating the positions; he advised on the qualifications necessary for each position; and he then offered his services as the best qualified person without providing any option other than to appoint him immediately. Cf. Bennett , 871 So.2d at 926 (determining that town council chairman did not act corruptly by marking-up the town's revised zoning map in a way that would benefit his properties because the mark-ups were merely "suggestions" that the chairman was invited to make by the town's land planning consultant). In short, the evidence establishes that Robinson misused his position as city attorney to create an unfair advantage for himself and gain a personal benefit.

The evidence further establishes that Robinson knew or should have known that advising the city commission as city attorney on a matter benefiting himself personally was inconsistent with his public duties as city attorney because on prior occasions involving similar circumstances he advised the city commission to hire outside counsel. For example, in 2012, when Robinson intended to bid on the city attorney contract, he recommended that the city commission hire outside counsel on the matter because any advice from him would be a conflict of interest. Accordingly, in this case, Robinson's failure to advise the city commission to hire outside counsel when creating and establishing the qualifications for the Zoning Hearing Officer and Code Enforcement Special Magistrate positions-coupled with his creating a sense of urgency in the appointments and giving the city commissioners no other options-establishes that Robinson knew or should have known that his actions were wrong and unethical.

As can be seen from the characterization of the facts in the concurring in part/dissenting in part opinion, the ALJ in this case was presented with conflicting narratives about Robinson's eleventh-hour effort to obtain the Zoning Hearing Officer and Code Enforcement Special Magistrate positions. Was it simply a magnanimous gesture of a long-time and faithful public servant motivated by the best of intentions, as Robinson contended? Or, was it a "corrupt" act motivated by Robinson's pecuniary self-interest in preserving a portion of the income stream from the City that he had enjoyed for the past 13 years, as the Commission contended? It was the ALJ's prerogative-as the fact-finder charged with weighing and balancing the direct and circumstantial evidence-to reject Robinson's narrative and view the evidence consistent with the narrative advocated by the Commission. We do not have the authority to second-guess the ALJ's view of the facts where, as here, there is competent substantial evidence to support that view. See § 120.68(7)(b), Fla. Stat. (stating that "the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact").

In sum, because competent substantial evidence supports the Commission's finding that Robinson violated section 112.313(6), we affirm that finding.

B

In his second issue on appeal, Robinson contends that the Commission erred in finding that he violated section 112.313(16)(c) because the Commission misconstrued that statute. We agree.

Section 112.313(16)(c) provides:

No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney's law firm to be completed for the unit of local government.

(Emphasis added.)

The plain language of this statute prohibits two distinct actions. The first sentence relates to dual-representation and prohibits a local government attorney from representing a person or entity before the local government for which the attorney provides legal services. The second sentence relates to the referral of additional legal work and prohibits a local government attorney from referring legal work to his firm unless the attorney's contract with the local government authorizes or mandates that the firm be used to complete the local government's legal work.

Here, Robinson was found to have violated the first sentence of section 112.313(16)(c). The operative word in that sentence is "represent," which is defined to mean "actual physical attendance on behalf of a client in an agency proceeding ...." § 112.312(22), Fla. Stat. (emphasis added). The word "client" is not statutorily defined, but according to the dictionary, the word means "a person who engages the professional advice or services of another ." Client , MERRIAM-WEBSTER DICTIONARY , https://www.merriam-webster.com/dictionary/ client (emphasis added); see also Client , BLACK'S LAW DICTIONARY (6th Ed. 1990) (defining "client" as "[a]n individual, corporation, trust, or estate that employs a professional to advise or assist it in the professional's line of work").

The ALJ found that Robinson was representing himself or his law firm when he persuaded the city commission to appoint him as Zoning Hearing Officer and Code Enforcement Special Magistrate. That finding is supported by competent substantial evidence, so the resolution of the second issue on appeal boils down to whether Robinson was representing a "client" when he was representing himself or his law firm before the city commission.

We are not persuaded that the term "client" should be broadly construed to include Robinson's representation of himself or his law firm before the city commission under the circumstances of this case.

First, this broad interpretation is inconsistent with the longstanding interpretation of the statute reflected in the Commission's advisory opinions issued pursuant to section 112.322(3). In Opinion 17-18, for example, the Commission opined that section 112.313(16)(c) prohibited the contracted attorney for a local value adjustment board from representing "another person or entity" before the board, but that it did not prohibit the attorney from representing "[his] own interests as a property owner" before the board. Op. Comm'n on Ethics 17-18 (Dec. 13, 2017) (available at http://www.ethics.state.fl.us/Documents/Opinions/17/CEO%2017-018.htm ). This opinion relied on advisory opinions from 1978 and 1993 and explained that "it is axiomatic pursuant to opinions of this Commission that no public officer, employee, or local government attorney is prohibited from appearing before any board in an individual capacity as a private citizen, representing solely his or her own interests." Id. (citing advisory opinions 78-79 and 93-36).

Second, this broad interpretation would result in the first sentence of section 112.313(16)(c) prohibiting conduct that is expressly authorized by the second sentence of the statute. Specifically, if the first sentence of the statute were construed to preclude a local government attorney from representing himself or his firm when seeking additional legal work from the local government, then the second sentence of the statute-which permits the attorney to refer legal work to his firm so long as the contract with the local government allows him to do so-would be a nullity.

We have a duty to construe statutes in a manner that gives effect to all of their provisions. See Edwards v. Thomas , 229 So.3d 277, 284 (Fla. 2017) ("[R]elated statutory provision must be read together to achieve a consistent whole, and ... '[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another' " (quoting Quarantello v. Leroy , 977 So.2d 648, 651-52 (Fla. 5th DCA 2008) ) ). Accordingly, we reject the ALJ's broad interpretation of section 112.313(16)(c) in this case, and consistent with the longstanding interpretation adopted by the Commission in its advisory opinions, we narrowly construe this statute to only preclude the local government attorney from representing a person or entity other than himself before the unit of government to which the attorney provides legal services.

This does not mean that there are no ethical limitations on a local government attorney's referral of legal work to himself or his law firm. Indeed, the second sentence of section 112.313(16)(c) prohibits such referrals unless they are authorized or mandated by the attorney's contract with the local government, and section 112.313(16)(b) provides that the "the standards of conduct in subsections (2), (4), (5), (6), and (8) [of section 112.313 ] shall apply to any person who serves as a local government attorney." Accordingly, as happened in this case, a local government attorney who is found to have misused his position by "corruptly" obtaining legal work or other special benefits or privileges for himself or his firm can be found guilty of violating section 112.313(6).

In sum, because the Commission misconstrued section 112.313(16)(c), we reverse the Commission's determination that Robinson violated that statute.

C

In his final issue on appeal, Robinson contends that the Commission abused its discretion by increasing the recommended penalty to include a public censure and reprimand. We need not resolve this issue because the Commission will need to reconsider the recommended penalty based on our reversal of the portion of the final order and public report finding that Robinson violated section 112.313(16)(c). See Green v. Dep't of Bus. & Prof. Reg. , 49 So.3d 315, 319 (Fla. 1st DCA 2010) (reversing and remanding for reconsideration of penalty based on reversal of several violations on which the penalty was based). If, on remand, the Commission decides again to increase the recommended penalty, it must "stat[e] with particularity its reasons therefor in the order, by citing to the record in justifying the action." § 120.57(1)(l ), Fla. Stat.

III

In sum, for the reasons stated above, we affirm the Commission's finding that Robinson violated section 112.313(6), but reverse its finding that he violated section 112.313(16)(c). We remand the case to the Commission for reconsideration of the penalty.

AFFIRMED in part; REVERSED and REMANDED in part.

Kelsey, J., concurs. Makar, J., concurs in part and dissents in part with opinion.

Makar, J., concurring in part, dissenting in part.

"No good deed goes unpunished" best describes this case, one in which a trusted and well-respected attorney, who provided "exemplary legal services" as city attorney to a rapidly-growing Southwest Florida municipality for over a decade, is absolved of every public ethics charge leveled against him but one: a claim that he acted "corruptly" in a series of public meetings by convincing the city commission to hire him on a limited, terminable-at-will basis after his successor's arrival. That charge, like the other three inter-related ones brought against him, should be invalidated.

Robert K. Robinson, as he transitioned from his long-held position of outside city attorney for the City of North Port, Florida, did two things relevant to this case. First, he and his law firm-who had provided legal services to the City for almost fourteen years under a broadly-written, full-service agreement-made themselves available to the City during the two-week gap before the arrival of the City's new in-house city attorney. At the vice-mayor's direction, Robinson prepared a letter of engagement for the City's consideration that was ultimately approved by the commission in public meetings.

Second, Robinson drafted ordinances creating a zoning hearing officer and a code-enforcement special magistrate, both to be contractually-awarded to outside legal counsel on a terminable-at-will, hourly basis. The need for these positions had been discussed previously, and they were supported by members of the City's governance. After public meetings on the proposed ordinances, they passed by a four-one vote and, concurrently, Robinson was hired for the positions, one of which had urgency because a pending zoning matter required immediate attention (the zoning board lacked sufficient members to take action and a lawsuit had been threatened). Not long thereafter, Robinson and his partners joined another private law firm, necessitating that he resign from the hearing officer position in which he served for just two weeks, resolving the pending zoning matter and one other.

That didn't close the chapter; instead, a new Kafkaesque one emerged. An ethics complaint was filed against Robinson, which was deemed legally sufficient to support an investigation, resulting in a report upon which the Commission by a closely-divided (five-four) vote found probable cause existed to believe that Robinson committed four state ethics violations. Each of the alleged violations arose from the identical conduct: Robinson "providing counsel and recommendations to the City Commission" as to the hearing officer ordinance and "encouraging" the City Commission to replace its code enforcement board with a special magistrate.

After much discovery and pre-hearing matters, a two-day evidentiary hearing was held and the administrative law judge's recommended order concluded that two violations were proven and two were not:

• Robinson did not violate Florida Statutes section 112.313(3) (2014)-which prohibits doing business with one's own agency -because section 112.313(16) lawfully permitted him to do so as to the hearing officer/magistrate positions.
• Robinson did not violate section 112.313(7)(a) -which prohibits conflicting employment and contractual relationships -because, although he and his law firm had "an inherent conflict" in concurrently representing the City and "drafting or signing off on requirements for the two new" hearing officer/magistrate positions, they were permitted to do so by statute such that they could: a) provide "all nature of legal services to the City" under section 112.313(16)(b) ; and b) were "specifically permitted" to "have an employment or contractual relationship with his law firm that would potentially create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties."
• Robinson violated section 112.313(16)(c) -which prohibits a local government attorney from "represent[ing]" a private individual or entity before the local government that employs him-because he was representing himself and his firm who would both "bec[ome] private citizens as to the City" after their legal services contract came to an end.
• Robinson violated section 112.313(6) -which prohibits misuse of public position -because he should have recommended, but didn't, that the City Commission hire outside counsel to handle the hearing officer/magistrate discussions and negotiations.

The Commission's Final Report unanimously upheld the two violations and this appeal ensued.

I agree that Robinson did not violate section 112.313(16)(c) because his actions-assisting the City by offering interim legal and hearing officer/magistrate services-did not amount to representation of a "client" before the City under the circumstances of this case. See § 112.312(22), Fla. Stat. (2014). Neither Robinson nor his firm were representing a "client," which the definitional statute requires, such that the section 112.313(16)(c) violation must be vacated.

But I fail to see how Robinson can be said to have acted "corruptly" in violation of section 112.313(6) as to the hearing officer/magistrate positions under the circumstances presented. As next discussed, (a) he and his law firm were exempt from ethics laws related to "doing business" and having "conflicting employment/contractual relationships" with the City, (b) he did nothing inconsistent with the proper performance of his public duties, and (c) his actions were not done with "corrupt" intent.

First off, Robinson and his firm were exempt from ethics laws against "doing business" and having "conflicting employment/contractual relationships." Robinson was the outside city attorney at the time the hearing officer/magistrate positions were first discussed, and later proposed and approved. By law, both Robinson and his law firm were statutorily exempt from the prohibition on "doing business with one's agency," § 112.313(3), Fla. Stat., and had statutory authority to provide comprehensive legal services and have an employment relationship with the City that conflicted with "his private interests and the performance of his public duties" (or impeded the latter). Section 112.313, subsection (16)(b) states:

(b) It shall not constitute a violation of subsection (3) [doing business with agency] or subsection (7) [conflicting employment or contractual relationship] for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government , so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government.

(Emphasis added). The italicized portion says that a local government lawyer (like Robinson) and his law firm have broad authority to provide "any or all legal services" to a local government without fear of an ethics violation for "doing business with one's agency" or having a "conflicting employment and contractual relationship" so long as "the local government attorney is not a full-time employee or member of the governing body of the unit of local government." Id. Robinson did not meet this latter description, thereby authorizing him and his law firm to do what they had done for over thirteen years: to make themselves fully available for any and all legal services the City might deem appropriate. This would include the "gap-filling" services Robinson and his law firm provided as well as the limited terminable-at-will services at issue. Nothing in the statutory language gave notice that either of these contracts was other than lawful.

Second, and on a similar note, Robinson did not act "corruptly" under section 112.313(6) because he didn't misuse his position by acting inconsistent with his public duties nor did he act with wrongful intent. Local government attorneys-though shielded from "doing business" and having "conflicting employment/contractual relationships" with their agencies-are subject to the standards of conduct in section 112.313(6), which says that no public official " shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others." § 112.313(6), Fla. Stat. The word "corruptly" is defined to mean "done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties ." § 112.312(9), Fla. Stat. (emphasis added). As next discussed, the highlighted portions were not met as to Robinson for a number of inter-related reasons.

Taking the latter language first, nothing establishes that Robinson acted inconsistent with the proper performance of his public duties in violation of law. No municipal code or state procurement law is alleged to have been violated; and no claim is made that the Commission was prohibited by law from contracting with Robinson directly for his services. Nor is Robinson's drafting of the ordinances as the City's attorney alleged to be impermissible under the municipal code; indeed, he fully assisted in the transition in a positive and constructive way. And, as just discussed, section 112.313(16)(b) gave the City much leeway in its procurement of "any or all" of Robinson's legal services.

What's left is the narrow claim that Robinson was required to suggest that the City hire and pay outside legal counsel to oversee and handle procurement of the hearing officer/magistrate positions to avoid a potential appearance of a conflict of interest because he had suggested such an arrangement when his firm expected to bid for the comprehensive, full-service legal services contract in 2012. At his suggestion, outside counsel was brought in, a competitive bid process was used, and Robinson's firm won the full-service contract in 2012. By failing to suggest the same type of arrangement for the procurement of the far more limited hearing officer/magistrate positions, Robinson is thereby deemed "corrupt" and acting inconsistent with public duties.

But that stretches the facts and law way too far. The factual findings, at best, establish that the situation could have been-not must have been-handled differently, making it important for someone in Robinson's position to have reason to be on notice that his conduct would be deemed "corrupt" and unlawful. On this point, our Court said long ago that the requirement of "corrupt" intent under subsection (6) includes a "reasonable notice" component:

the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be a violation of the law or the code of ethics in part III of chapter 112.

Blackburn v. State, Comm'n on Ethics , 589 So.2d 431, 434 (Fla. 1st DCA 1991) (emphasis added). But no factual findings nor legal authority establishes that an attorney in Robinson's position would be on notice that offering his services on such a limited basis was "inconsistent with the proper performance" of his public duties and a violation of state ethics laws under the specific facts presented. To the contrary, offering his legal services was consistent with the City's lawful procurement of "any and all" legal services from both him and his law firm; and it was lawful, and not an ethics violation, under the broad legal services contract that was in place. § 112.313(16)(b) & (c), Fla. Stat. And the evidence irrefutably shows he was acting consistent with the commission's best interests, as clearly expressed and ratified by the commissioners themselves at their many public meetings on the topic.

Similarly, he was not on "reasonable notice" that it was illegal for him to fail to suggest that the city commission hire outside counsel to handle the hearing officer/magistrate discussions and negotiations. Yes, he had suggested that the City hire outside counsel in 2012 when the entirety of the City's legal services were up for bid, which was prudent (though not required by any procurement law cited in this case); but that situation is far different from the limited procurement of terminable-at-will hearing officer/magistrate services at issue in this case. The best practice for comprehensive, full-service multi-year contracts may be that a city attorney should suggest the hiring of outside counsel to handle the procurement independently, as Robinson proposed in 2012, if the incumbent city attorney expects to bid. But nowhere is it written that a municipality must always hire and pay outside counsel to prepare ordinances and oversee procurement of attorney services no matter their size or scope; the cost of hiring outside counsel could easily exceed the budget for the legal services to be procured, as would have been the case here. Plus, the commission was aware of the outside counsel option-they had just used it in 2012-and they chose to reject it along with options a dissenting commissioner wanted.

At most, a sliding scale of "best practices" exists as to what ought to be done generally when legal services are procured, particularly given the statutory protection that attorneys-like Robinson-get from ethics charges that they did business with their own agency or had conflicting employment or contractual relationships. § 112.313(16), Fla. Stat. On this point, the factual findings suggest various measures of prudence that persons in Robinson's position may wish to consider; but not a single factual finding was made, nor legal authority cited, that supports the necessary conclusion that Robinson acted with "reasonable notice" that his conduct "was inconsistent with the proper performance of h[is] public duties and would be a violation of the law or the code of ethics in part III of chapter 112." Blackburn , 589 So.2d at 434.

Third, it is equally apparent that Robinson did not have the wrongful intent that section 112.313(6) requires. Tellingly, the administrative law judge made no specific factual findings as to Robinson's "wrongful intent" or whether he acted "corruptly," which must be established by clear and convincing evidence because of the momentous negative impact an ethics violation imposes on a public official's reputation and station in life. Latham v. Florida Comm'n on Ethics , 694 So.2d 83, 86 (Fla. 1st DCA 1997) (requiring heightened evidentiary standard because of the punitive nature of sanctions, such that "the bearer of an officially-administered stamp of corruption, may find loss of livelihood among the least of his worries. The wake of such censure can easily sweep away business and political ambitions, station in the community, and the respect and love of family and friends."). The administrative law judge was the only person who heard the testimony and viewed the evidence (the Commission merely reviewed his proposed findings and conclusions), yet no direct factual findings were made on a critical, dispositive element of the claimed offense: corrupt intent. This omission is next to incurable because it leaves an evidentiary hole that cannot adequately be filled by mere inference or conjecture of "corrupt intent" via the Commission's secondhand review of the paper record.

Indeed, the "factual findings of the administrative law judge, which were adopted by the Commission, contradict the conclusion that Appellant acted corruptly." Bennett v. Comm'n on Ethics , 871 So.2d 924, 926 (Fla. 5th DCA 2004). The administrative law judge's findings paint a portrait of Robinson as an exceptionally skilled and trusted attorney who had acted properly for his entire time as city attorney. Aside from the hearing officer/magistrate positions, no claim is made that Robinson-a thirty-year practicing attorney, board-certified in city, county, and local government law-was anything other than exceptionally well-qualified for the comprehensive scope of complex local government services for which he was hired. The administrative law judge found, and no one disputes, that Robinson provided "exemplary legal services" to the City for almost fourteen years and was "trusted" and well-respected. He further found that Robinson believed he was representing the City's interests and did not "impede or frustrate the City Commission's move to an appointed City Attorney." To the contrary, Robinson "assisted the City in its search for an in-house City Attorney by recommending a search firm [for the new city attorney], and by speaking positively about the transition to the in-house situation." Robinson's actions can be seen as entirely consistent with the commission's overall game plan, which was to hire a new in-house city attorney with a smooth transition provided by Robinson and his firm. That Robinson offered himself for the positions is a non-starter because he was ideally suited to continue handling the limited and pressing City matters due to his superior knowledge and experience, just as he and his firm were ideally suited to bridge the transition to the in-house city attorney; all but one commissioner concurred in the need and cost effectiveness of using Robinson.

Four of the five city commissioners voted for the ordinances after a series of public meetings and discussions. They concluded that Robinson's services under the terminable-at-will, hourly positions were appropriate and necessary. The City-having used outside counsel in the 2012 procurement-could have chosen to do so here, assuming they were inclined to spend public money for whatever marginal benefit it might produce. Instead, only one of the commissioners-who was newly elected and had become Robinson's constant critic-wanted to put off the matter and seek alternatives. The four other commissioners were sufficiently satisfied with the matter to vote for it without further ado. Who's to say they exercised less than independent judgment under the circumstances? No evidence suggests that Robinson had Svengali-like sway over the four commissioners, or that he duped or hornswoggled them. As one skeptical Ethics Commissioner queried, could it truly have been "a complete shirking of the independent functional brain capacity of those commissioners who made a decision to consider whether there could have been other alternatives and whether they really wanted to accept his offer?" Answer: No. A review of the videotapes and transcripts of the commission meetings, at which the super-majority repeatedly rejected efforts by the dissenting commissioner to delay the process or consider alternatives, makes clear they exercised independent judgment and engaged in extensive discussion and debate. To conclude that Robinson "acted corruptly under these facts, therefore, is erroneous." Bennett , 871 So.2d at 926.

On this same point, it bears emphasis that Robinson's actions were on full public display at the commission's open meetings. Those videotapes show that Robinson's actions were plainly and collegially done to assist the City in its transition to an in-house city attorney and to meet a pressing need (the zoning matter) that could be met with his unquestioned and trusted legal abilities (much is made that Robinson offered his services at the "eleventh hour" but the urgency of the need was never in doubt). No claim is made that any public meeting laws were breached; all actions and statements at issue in this matter occurred in public fora and were set forth in public documents. Nothing was hidden from view; everything was done above-board; and no secretive or clandestine tactics were used. Rather than acting "corruptly" in full view of the public, Robinson's actions-as confirmed by the factual findings-reflect no wrongful intent whatsoever.

Finally, it bears noting that subsection (6) targets genuinely egregious public misconduct, not simply partisan grievances or personal disagreements with a public official. In this regard, the case against Robinson has parallels to the subsection (6) violation that the Fifth District reversed in Siplin v. Comm'n on Ethics , 59 So.3d 150, 152 (Fla. 5th DCA 2011), which held that "[s]ubstantial competent evidence does not support the administrative law judge's factual findings, which were adopted by the Commission, concluding that Siplin acted 'corruptly.' " The ethics charge against Siplin was that he used his official position as a state senator to " 'bully' [a deputy] into letting him access the parking lot through a barricaded route." Id. In exonerating Siplin, the Fifth District concluded that no evidence established that he acted "corruptly," stating also that the Commission could "point[ ] to no law or ethics code that prohibited Siplin from asking to go through the barrier." Id. Likewise, the evidence here falls far short of establishing that Robinson acted "corruptly," there being no law or ethics code that prohibited Robinson from assisting the City in proposing and providing the hearing officer/magistrate services under the circumstances presented.

* * *

In summary, the evidence fails to demonstrate that Robinson acted corruptly as statutorily-defined in section 112.313(6). No evidence shows that he had reasonable notice that his actions were inconsistent with his public duties or a violation of law under the circumstances. Punctuating this conclusion is that Robinson's conduct violates none of the other public ethics laws related to the procurement of legal services. Each of the four claims that Robinson violated ethics laws-all arising from the identical set of facts-should be dismissed, lest what can reasonably be viewed as an entirely lawful and mutually-advantageous procurement matter is transformed into a "corrupt" "misuse of power" under subsection (6).

      The concurring in part/dissenting in part opinion suggests that the vote on the finding of probable cause was "closely-divided." But, even if that is true, it does not matter because all that was needed for the Commission to find probable cause was a majority vote. Thus, whether the vote was "five-four," unanimous, or something in between, the result is the same. Moreover, in this case, any significance attributable to the vote-count at the probable cause stage is eviscerated by the Commission's unanimous vote on the final order and public report that occurred after the facts were fully developed.

      Commissioner Anchors-the "skeptical Ethics Commissioner" referred to in the concurring in part/dissenting in part opinion-commented prior to the vote that she shared some of the concerns raised in Robinson's exceptions, but she nevertheless joined the vote to adopt the recommended order because she correctly recognized that the Commission could not overturn the ALJ's findings under the applicable standard of review. She explained:
      I don't think I can overcome the standard that we have to be able to deviate from the administrative law judge's findings.
      If I were an administrative law judge, I might have had a different observation, but I think that they were well articulated and well reasoned. They caused me some pause, but I don't think I can meet the standard.

      Where, as here, the Commission finds that a violation of part III of chapter 112 has occurred, its "duty" is to "report its findings and recommend appropriate action to the proper disciplinary official." § 112.324(8), Fla. Stat. The disciplinary official-in this case, the Governor, see § 112.324(8)(d), Fla. Stat.-is then responsible for imposing the penalty.

      We summarily reject Robinson's argument that the ALJ's failure to make an explicit finding that he acted "corruptly" compels reversal because, as the Commission explained in the final order and public report, that finding is implicit from the other findings in the recommended order and the ALJ's determination that Robinson violated section 112.313(6).

      It is appropriate to refer to dictionary definitions to ascertain the plain and ordinary meaning of terms that are not statutorily defined. See Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schools, Inc. , 3 So.3d 1220, 1223 (Fla. 2009).

      The Commission's advisory opinions are not binding on the courts, but they are persuasive and entitled to due consideration. See State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla. 1993) (explaining that opinions of the Attorney General are not binding on the courts, but they are persuasive).


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    AMERISURE INSURANCE COMPANY, etc., Petitioner, v. Lazaro RODRIGUEZ, Respondent.
    No. 3D17-1598
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018.
    Cole Scott & Kissane, P.A., and Benjamin M. Esco, Pedro J. Collazo, and Scott Cole ; Emerson & Elder, P.C., and Donald E. Elder (Chicago, IL), for petitioner.
    Dorta Law, and Matias R. Dorta and Gonzalo R. Dorta ; De La Heria, Glinn & Pedraza, and Raul De La Heria, for respondent.
    Before SALTER, LOGUE, and SCALES, JJ.
   LOGUE, J.

Amerisure Insurance Company seeks certiorari review of the trial court's order denying its motion to dismiss or abate the spoliation of evidence claim asserted by the plaintiff, Lazaro Rodriguez. Because Amerisure has failed to meet the threshold requirement of showing that the trial court's order creates irreparable harm, we dismiss the petition for lack of jurisdiction.

Background

While working for BV Oil, Inc. on the premises of Cosme Investments, LLP, the plaintiff was involved in an accident and suffered personal injuries. He filed a claim for workers' compensation benefits and is receiving benefits paid by BV Oil's workers' compensation carrier, Amerisure Insurance Company.

The plaintiff also sued Cosme Investments, asserting claims of negligence and strict liability for the injuries he suffered as a business invitee on Cosme's premises. He then amended his complaint to add BV Oil and Amerisure as defendants. The plaintiff alleged that BV Oil and Amerisure had possessed, and negligently lost, a video which showed how the accident occurred. The loss of the video, according to the plaintiff, impaired his ability to prosecute his claim against Cosme and defend against Cosme's claim of comparative negligence.

Amerisure filed a motion to dismiss or abate, arguing that the spoliation claim was unripe for adjudication until the plaintiff's premises liability claims had been resolved. Following a hearing, the trial court denied Amerisure's motion. This petition for writ of certiorari followed.

Analysis

Before reaching the merits of the petition, we must first determine whether we have jurisdiction. As is well established, "[t]o prevail in its petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal." Damsky v. University of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014). The latter two elements "are sometimes referred to as irreparable harm." Id. If a petitioner is unable to demonstrate irreparable harm, "the court must dismiss the petition for lack of jurisdiction." Id.

Here, Amerisure alleges that it will be irreparably harmed if it is forced to respond to discovery propounded by the plaintiff. Amerisure argues that discovery is premature and that "the information requested is irrelevant to Plaintiff's [complaint], or is otherwise protected by the attorney-client, work-product or other privileges." Further, Amerisure has "objected to producing a corporate representative on the seventeen (17) substantive diverse topics set forth in Plaintiff's Notice of Deposition as the notice would potentially require the depositions of multiple representatives, and were objectionable on their face." Although discovery has been propounded, there is no order compelling Amerisure to respond to the discovery, nor has there been any ruling on the objections to the discovery.

While it is true that "[a]n order erroneously compelling discovery of privileged information is reviewable by certiorari because an order requiring disclosure of privileged information may cause irreparable injury," Heartland Express, Inc. of Iowa v. Torres, 90 So.3d 365, 367 (Fla. 1st DCA 2012), no such order exists in this case. Amerisure is only able to show a possibility that the trial court may enter such an order. This does not rise to the level of irreparable harm. As we noted in State Farm Florida Insurance Company v. Seville Place Condominium Association, 74 So.3d 105, 108, (Fla. 3d DCA 2011), "[t]o the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions." (Emphasis added).

Amerisure also argues it is being forced to defend the spoliation claim in the same trial where the plaintiff prosecutes his negligence and liability claims against Cosme. As with the discovery issue, there is no trial order yet in place. The possibility that litigation may result in a unitary trial which, in turn, may well constitute irreparable harm is insufficient to confer jurisdiction for certiorari review. Id.

Dismissed.


author: Per Curiam.

text:
    Somboon Ted POOMARAT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0629
    District Court of Appeal of Florida, First District.
    April 3, 2018 Rehearing Denied May 17, 2018
    Somboon Ted Poomarat, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Joseph v. State , 157 So.3d 546, 548 (Fla. 1st DCA 2015).

Wolf, Lewis, and Jay, JJ., concur.


author: CASANUEVA, Judge.

text:
    Andre Lamont WILSON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1730
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Andre Lamont Wilson, Jr., appeals his judgments for burglary of an occupied structure while armed with a firearm, robbery with a firearm, aggravated battery with a firearm, and two counts of armed kidnapping with a firearm. Mr. Wilson was sentenced to fifteen years in prison on the aggravated battery count and consecutive life sentences with a ten-year minimum mandatory term for the remaining counts. Each conviction factually stemmed from a robbery of a Pizza Hut on December 12, 2012.

The issue presented by Mr. Wilson is whether the conduct of law enforcement officers during his interrogation violated protections afforded him by the Constitution of the United States and the Constitution of the State of Florida and, more specifically, those protections provided by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Based on our review of the record, including the audio and video recording of the interrogation, we conclude that the confession given by Mr. Wilson, elicited prior to the administration of Miranda warnings, was obtained improperly. The trial court erred in denying Mr. Wilson's motion to suppress, and this error was not harmless.

We are required to reverse and remand for further proceedings and note that "[t]he disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his 'rights,' may nonetheless be excluded and a guilty defendant go free as a result." Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

I. FACTS AND PROCEDURAL BACKGROUND

On December 18, 2012, Mr. Wilson agreed to meet with officers of the Sebring Police Department at a park near his home. He had contacted the officers at the request of a friend. When the officers arrived at the park, they asked if Mr. Wilson would be willing to talk with them at the station. He agreed, and the officers gave him a ride in their vehicle.

At the beginning of the interview, Mr. Wilson did not know what the officers wanted to discuss with him. Mr. Wilson stated that he needed to leave by 3:30 p.m. to meet someone. The officer responded, "[Y]ou won't be here that long. And like I said, we'll ride you home whenever you're ready." They also told him where the exits were and told him he was free to leave at any time.

The interview was held in a small room with a closed door at the station. It began around 2 p.m. and ended just after 5:30 p.m. Minutes into the questioning, Mr. Wilson was told, "Well, the reason we're here to talk to you today is we've had a series of robberies in which you have become a suspect."

Mr. Wilson denied any involvement, but the officers were not deterred. The officers stated that they had collected evidence from the scene and that they knew he was involved. The officers stated they were willing to work with him, but he needed to "stop playing games" and "start either coming clean or you're going to end up taking the ride." The officers pressed him with increasing details of evidence implicating him in the crime, including DNA and fingerprints found on items linked to the robbery. These items were found at the house of his friend, Terrell. They stated they had GPS data and phone call recordings and could place Mr. Wilson at that house just after the robbery. After some time, Mr. Wilson acknowledged he may have touched a gun that was at the friend's house, but he denied using the gun, denied owning a cell phone, and denied any involvement in the robbery.

The officers responded that it was obvious he was not telling the truth "because the gun that you've tied yourself to was used in an armed robbery.... So all this stuff that you're giving is just tying you more and more and more to the armed robbery." They went on to tell him, "I can look you in the eye and without a shadow of a doubt, all right, through forensics and DNA and other evidence and other statements put you in Pizza Hut" at the time of the robbery. "I know the last thing you want is another armed robbery with a firearm charge.... Without us talking to the State Attorney, that will send you up for a number of Christmases and a number of your birthdays."

They told him that a shot was fired from a gun during the robbery, making it "a 10/20/Life case." They also stated that they had his DNA on a gun that was fired and that they recovered a projectile and casing from the scene. After further denials, one officer stated: "We know pretty much what's happened. All right. We wanted to give you the opportunity to be forthcoming, so we can tell the State Attorney that you need a second chance." After explaining that they had "a stack of evidence" against Mr. Wilson, one officer stated: "When it comes down, it's going to come down so hard until there's nothing that we can do for you.... We're giving you the opportunity to continue your life."

Mr. Wilson was told that they could have arrested him already and, if he continued to deny his involvement, "when we present it to the State Attorney, all right, they are going to issue a warrant for your arrest. And you're going to go to jail." However, they offered him a way out and stated they were willing to recommend probation if he would tell them the truth, but this was a one-time offer.

The officers explained that they believed he was the driver for the robbery and they could track him to Terrell's house where the stolen money and employees' cell phones were found, along with face masks and guns. After giving him a bottle of water, they explained that they believed he was worth saving, and so they wanted to give him a second chance at life if he would tell the truth. The officers then explained that they would be willing to recommend that his prior robbery charge and the instant case be lumped together and that he receive a total of eight years of probation. When Mr. Wilson questioned the impact of a recommendation, one officer reassured him: "I've been a cop 16 years .... I have never seen the State not go with the recommendations that we make." The officers agreed to "stand up" for Mr. Wilson and recommend no prison time. When Mr. Wilson stated, "I don't want to go to prison," one officer offered to put on the record, "I promise you I will go to the State Attorney and recommend that you catch probation. No prison time." The other two officers agreed, and they told him that they needed to get the truth from him that day: "In other words, you can't leave here today and think about it and call us tomorrow.... [I]t's all or nothing right here right now."

Mr. Wilson expressed interest in the plan, asked for a pen and paper to get the officers' names, and then asked to use the phone. Mr. Wilson stated, "I just want to get my lawyer's opinion on this.... I just want to get my lawyer's opinion of it." The officer said that was fine, it was his right, but it would end the discussion. Mr. Wilson said, "I just want to just like see if that's-that's even possible what you guys are telling me." Then the officer presented an alternative to Mr. Wilson calling his lawyer, stating: "I'll do you one better.... I'll bring you our boss in. All right. And you can ask him."

The other officers exited, and the boss came in and spent some time answering Mr. Wilson's questions one-on-one. He explained that the officers would make a recommendation based on his cooperation and, while they could not give a guarantee, he could very possibly get house arrest. He explained that he was getting this offer before any of the other suspects and told Mr. Wilson that it could not hurt him in any way to work with the officers.

At the end of this consultation, Mr. Wilson seemed reassured and stated, "I just wanted to get it from another opinion." The sergeant reiterated, "You ain't got nothing to lose." The steps of the plea negotiations were explained, the three officers further assured Mr. Wilson, "[W]e're going to go to bat for you," and Mr. Wilson then gave his confession that was later placed, as evidence, before the jury.

After giving his recorded statement confessing to his involvement in the armed robbery, Mr. Wilson was in fact permitted to go home, and it was not until a follow-up interview the next day that Mr. Wilson was advised of his constitutional rights, commonly known as the Miranda warnings.

On April 2, 2014, Mr. Wilson filed a motion to suppress his statement, asserting that it was obtained during an improper custodial interrogation, that it was obtained by coercion, and that he had invoked his right to counsel which was ignored. Counsel for Mr. Wilson and for the State stipulated that the trial court would review the recording of the interview off the record and thereafter rule on the motion to suppress. Later, when asked by the parties if the trial court had an opportunity to review that evidence, the trial court indicated that it had, and the motion to suppress was denied with no oral or written findings of fact.

The case went to trial in March 2015, and the State presented testimony that three masked men with guns robbed the Sebring Pizza Hut. Police located cash, a key from the restaurant, guns, and the employees' cell phones at Terrell's house. They found a projectile and casing at the Pizza Hut matching one of the guns, but no prints of value were found on the firearms or plastic bags containing the stolen items. Over defense objection, the State played for the jury Mr. Wilson's statement in which he admitted that he drove to the Pizza Hut in a mask, held a revolver, got a worker to open the back door, and stayed at the back of the restaurant while two others went inside to get the money. None of the evidence referenced during the interrogation was used to link Mr. Wilson to the robbery, and none of the witnesses identified him as being a participant in the robbery or at Terrell's house that night; the State's case was based primarily on Mr. Wilson's confession.

II. ANALYSIS

A. Standard of Review

In reviewing a trial court's decision on a motion to suppress, we afford a presumption of correctness to the trial court's findings of facts, but the application of those facts to the law is reviewed de novo. Wyche v. State, 987 So.2d 23, 25 (Fla. 2008). This court must interpret the evidence and the reasonable inferences to be drawn from the evidence in a manner most favorable to sustaining the trial court's ruling. Martin v. State, 107 So.3d 281, 298 (Fla. 2012) (citing Pagan v. State, 830 So.2d 792, 806 (Fla. 2002) ).

B. Custodial Interrogation

Here, the motion to suppress sought to exclude the statements made by Mr. Wilson while being questioned at the station. We pause to note that neither the United States Constitution nor the Florida Constitution requires the exclusion of all statements of confession made by an accused. "Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable." United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977). What is prohibited is the admission of governmentally compelled statements.

We look to the language of the Fifth Amendment to the Constitution of the United States to determine the parameters of its field of protection. It provides, in pertinent part, that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. These protections apply to the States by virtue of the Fourteenth Amendment. Maryland v. Shatzer, 559 U.S. 98, 103, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) (citing Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ). The protection against self-incrimination is also set forth in article I, section 9, of the Florida Constitution, and this fundamental right must be broadly construed. Myers v. State, 211 So.3d 962, 966 (Fla. 2017) (citing State v. Horwitz, 191 So.3d 429, 439 (Fla. 2016) ).

"Statements obtained from a defendant in violation of the right against self-incrimination (also known as a 'privilege') cannot be used against the defendant at trial." Cuervo v. State, 967 So.2d 155, 160 (Fla. 2007). A suspect who is subjected to a custodial interrogation must be made aware of his or her constitutional right against self-incrimination, and this is accomplished through Miranda warnings. Myers, 211 So.3d at 971 ; see Ramirez v. State, 739 So.2d 568, 573 (Fla. 1999) (noting Miranda enunciates a "bright-line rule to guard against compulsion and the coercive nature and atmosphere of custodial interrogation"). "Under Miranda..., statements made to the police in the course of a 'custodial interrogation' must be suppressed if the police have not informed the suspect of his constitutional rights prior to the interrogation." State v. Pitts, 936 So.2d 1111, 1123 (Fla. 2d DCA 2006) ; see also State v. McAdams, 193 So.3d 824, 833 (Fla. 2016) (citing Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and Deviney v. State, 112 So.3d 57, 79 (Fla. 2013) ).

In Oregon v. Elstad, 470 U.S. 298, 306-07, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court set forth the operation of the Miranda decision:

The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.

(Footnote omitted.) It is the State's burden to prove that a statement was voluntarily made. See Ross v. State, 45 So.3d 403, 418 (Fla. 2010) (citing Ramirez, 739 So.2d at 573 ).

Because Miranda warnings are necessary only when a suspect undergoes a custodial interrogation, we must first determine whether Mr. Wilson was in custody and, if so, whether he was interrogated while in custody. See Hunter v. State, 8 So.3d 1052, 1063 (Fla. 2008). We acknowledge that in this area of law, "while precedent remains a guide, custody determinations are heavily fact dependent." McAdams, 193 So.3d at 833 (citing 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) ). Nonetheless, we continue to examine precedent as it sheds probative light on our factual examination. The element of interrogation is more easily determined in this case, and we will consider it first.

1. Interrogation

We observe that an interrogation takes place "when a state agent asks questions or engages in actions that a reasonable person would conclude are intended to lead to an incriminating response." Id. Based on our review of the record, we conclude that this standard was clearly met. The motivating purpose of the interview right from the start was to obtain incriminating evidence regarding Mr. Wilson's involvement in the robbery. Officers made promises of leniency, made representations that he did not need an attorney and that he could rely upon the good offices of the police department, and used other techniques to obtain the desired incriminating evidence. Ultimately, Mr. Wilson did incriminate himself. Because this standard was unequivocally met, we turn to the custodial determination.

2. Custody

To determine whether a person is in custody as contemplated by Miranda, both the United States Supreme Court and the Supreme Court of Florida have adopted an objective, reasonable person framework. The federal standard has been articulated as "how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). In Connor v. State, 803 So.2d 598, 605 (Fla. 2001), the Florida Supreme Court said that to meet the standard it "must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police."

When determining whether a person is in custody, courts must examine: "(1) the 'circumstances surrounding the interrogation;' and (2) 'given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.' " McAdams, 193 So.3d at 833 (quoting Ross, 45 So.3d at 415 ); see also Caldwell v. State, 41 So.3d 188, 197 (Fla. 2010) (stating "[t]he standard for 'custody' is whether, based on the totality of the circumstances, a reasonable person would feel that his freedom of movement has been restricted to a degree associated with an actual arrest").

The question of whether Mr. Wilson was "in custody" is a mixed question of law and fact, which we review using a two-step process. Connor, 803 So.2d at 605. This court is required to "defer to a trial court's findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court's application of the law to the historical facts." Ross, 45 So.3d at 414. As previously observed, the trial court did not articulate any findings of fact. However, we are able to review the same evidence reviewed and relied upon by the court in making its ruling, i.e., the video recording of Mr. Wilson's interview.

To evaluate how a "reasonable person" in Mr. Wilson's position would have perceived the situation, we consider the four factors set forth in Ramirez, 739 So.2d at 574. In doing so, the point of perception is not that of the inquiring law enforcement officer but that of a reasonable person in the suspect's position. The four factors are:

(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.

The first factor weighs in the State's favor. Mr. Wilson agreed to meet the officers at a park near his home. At the officers' request, Mr. Wilson, who was barefoot, accepted a ride to the station in the officers' vehicle. He was not handcuffed, and they assured him that they would bring him back to the park at the conclusion of the interview. After reviewing the record, we conclude that Mr. Wilson voluntarily agreed to be transported for the interview.

We next examine the second factor-the purpose, place, and manner of the questioning. The place of questioning was a small room at the police station. While questioning at the police station is not determinative of whether the interrogation was "custodial," it is certainly consistent with a custodial interrogation. See Pitts, 936 So.2d at 1126 ("Most custodial interrogations take place in a police station, and a defendant's presence in a station while subjected to questioning undoubtedly can have a bearing on how a reasonable person in the defendant's situation views his status."). The record further discloses that multiple officers entered and exited the room throughout the interrogation, and multiple officers were present for almost all of the interview.

As for purpose and manner, it is clear that the purpose of the questioning from the inception of the interview was to pressure Mr. Wilson to explain his involvement in the Pizza Hut robbery and to obtain a confession. The manner of the questioning supports this conclusion. Questioning was confrontational and accusatorial, and Mr. Wilson was pressured throughout the interview to "tell the truth" and explain his involvement in the robbery. The officers were clearly frustrated by Mr. Wilson's continued denial as to any involvement or knowledge, and they made it clear that this was his one opportunity to cooperate with them and receive their assistance by admitting his involvement.

In Ross, 45 So.3d at 415, the suspect was initially asked to give a statement and then was questioned about inconsistencies in his story. He was then confronted with evidence against him, and "the detective's focus shifted from merely questioning a witness to attempting to obtain a confession and pressuring Ross to admit his involvement in the crime. The detective repeatedly told Ross that he knew Ross committed the crime and the only question remaining was why." Id. at 415-16. Ross was questioned in a highly confrontational and accusatorial manner for hours in a small room at the station by at least two officers. When Ross asked for a smoke break, he was told to smoke in the room and questioning continued. The supreme court concluded that, as to this Ramirez factor, the record clearly supported a conclusion that Ross was in custody.

Likewise, the questioning of Mr. Wilson was confrontational and accusatorial almost from the start of the interview. They told him right out of the gate that he was a suspect in a series of robberies, and they specifically mentioned an armed robbery at a Pizza Hut on December 12, 2012. When he claimed to have no knowledge of or involvement in the robbery, the officers told him they had a stack of evidence against him, including DNA, fingerprints, ballistics, and voice forensics, and they said unequivocally that they could place him at the Pizza Hut during the robbery.

In response to continued denials of any involvement, the officers stated that they knew he was lying, told him to stop playing games, and reminded him that this was a 10/20/Life crime while he was awaiting sentencing on another robbery charge. They told him that they had sufficient evidence to arrest him already. Mr. Wilson was told on more than one occasion that only one of the perpetrators would get the benefit of cooperation. The final effect was to obtain a confession. We conclude that this factor weighs against the State and in support of a conclusion that Mr. Wilson was in custody at the time he made his confession.

The third factor to consider is the extent to which Mr. Wilson was confronted with evidence of his guilt, and we note that the circumstances of this factor can weigh heavily in the determination of whether the suspect was in custody. Pitts, 936 So.2d at 1127. The importance of this factor was explained in Pitts as follows:

A reasonable person in the situation of a suspect who has been "confronted with evidence strongly suggesting his guilt" may well understand that such evidence means that the police will not allow the suspect to go on his way.... If a reasonable person in the suspect's position would understand that the police have probable cause to arrest the suspect for a serious crime such as murder or kidnapping, that circumstance militates strongly toward the conclusion that the suspect is in custody.

Id. at 1127-28 (footnote omitted).

Here, the transcript reveals the frequent and extensive use of this information throughout the interview, some of which we have already set forth. As noted in the discussion of the second factor, the officers repeatedly informed Mr. Wilson that they had physical evidence against him, including DNA and fingerprints, and fingerprints and DNA "don't lie." They explained that they had a gun with his DNA on it and a casing that proved that the gun had been fired at the Pizza Hut; they had ski masks that a witness confirmed were used during the robbery, and they were certain his DNA would be on one; and they had GPS data and cell phone calls confirming his involvement. When he offered an innocent explanation for why his fingerprints might be found on a gun at Terrell's house, the officers told him that he was just tying himself more and more to the armed robbery.

In McAdams, the defendant was similarly presented with evidence of his guilt, including DNA evidence. 193 So.3d at 843. When the defendant posited an innocent explanation, the detective responded immediately that his explanation was inconsistent with the evidence. Further, the detective "created an atmosphere of inevitability when he told McAdams that he would not be allowed a couple of days to think about the situation." Id.

As in McAdams, Mr. Wilson was confronted with evidence that strongly suggested his guilt, and this continued despite his repeated denials. While "the significance of this factor may be diminished if the police do not express their belief in the suspect's guilt or do nothing to refute the suspect's offered explanation of innocence," Meredith v. State, 964 So.2d 247, 251 (Fla. 4th DCA 2007) (citing Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), and Pitts, 936 So.2d at 1128 ), the officers did just the opposite here. When Mr. Wilson asserted his innocence and disputed the claims that he was involved, the officers accused him of lying, told him to stop playing games, and indicated that his arrest was inevitable. We conclude that this important factor weighs in favor of a finding of custody.

The final factor is whether Mr. Wilson was informed that he was free to leave the place of questioning. At first glance, this factor appears to weigh in favor of the State. At the outset of his contact with the officers in this case, Mr. Wilson was told that he was free to go, shown the way out, and told that no matter what he said he would not be arrested that day. In fact, he was not arrested that day and was returned to his car after giving his statement.

However, we note that the officers' questioning as the interview progressed suggested that Mr. Wilson was free to leave only after admitting to his involvement. One officer stated:

You are going back to your car at Lake June Park when this conversation is over. I give you my word as a Christian on that. All right. You are not leaving from here to go to jail. I-but here is the deal. Plain and simple, 1,000 percent, we can put you inside Pizza Hut on December 12th of this year.

Another officer later stated, "[W]hen we are done here you're back to your car." Mr. Wilson asked, "[W]hat do you want from me?" And the officer answered, "I want the truth, Andre." He again denied involvement, and the questioning continued despite Mr. Wilson expressing concern over the time and needing to meet someone at 3:30. After the officers gave assurances that they would go to bat for him if he told the truth, Mr. Wilson asked, "And then I get to go home?" The officer confirmed, "Absolutely.... After we get through with this, we'll head off." Shortly thereafter, Mr. Wilson made a confession.

We recognize again that each suppression case is highly fact-dependent. Similar conduct may not suggest a custodial interrogation when viewed in isolation or under a different set of circumstances. However, Mr. Wilson had not been read his Miranda warnings, had been repeatedly told that the officers could have already arrested him if they wanted to, and if he continued to deny his involvement, the State Attorney would direct them to do just that. He had been driven to the station in his bare feet and was interviewed with multiple officers in the room at a time, all while being presented with accusations and evidence of his guilt. Thus, while Mr. Wilson was told that he was free to leave, these statements were qualified by the officers' words and actions such that this factor does not weigh in favor of the State and is, at best, in equipoise.

As the supreme court noted in McAdams: "[T]here is not necessarily a single specific comment, question, or circumstance that converts an encounter from noncustodial to custodial. A situation can commence as a voluntary interaction with police, but slowly intensify and become more pressured, pointed, and accusatory until it evolves into custodial status." 193 So.3d at 839. That is precisely what occurred here. We find that, under the totality of the circumstances, a reasonable person in Mr. Wilson's situation would not have felt free to leave, and thus we conclude that Mr. Wilson was in custody at the time he made his statement.

3. Right To Counsel

Having concluded that Mr. Wilson was in custody at the time he gave his statement, we turn to his argument that the confession should have been excluded as provided in violation of his right to counsel. The United States Supreme Court has held that "a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins." Davis v. United States, 512 U.S. 452, 457, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citing Miranda, 384 U.S. at 469-73, 86 S.Ct. 1602 ). Similarly, the Florida Supreme Court has held that, to ensure the voluntariness of a confession, prior to custodial interrogation, suspects must be informed "that they have a right to a lawyer's help, and that if they cannot pay for a lawyer one will be appointed to help them." Traylor v. State, 596 So.2d 957, 965-66 (Fla. 1992) (footnote omitted) (referencing Article 1, Section 9, of the Florida Constitution ).

As we have already concluded, Mr. Wilson was subjected to custodial interrogation. "[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves." Davis, 512 U.S. at 460, 114 S.Ct. 2350. No such warnings were given here. To make matters worse, Mr. Wilson requested the assistance of counsel prior to giving his confession. The following exchange took place:

A. I just want to get my lawyer's opinion on this.
Q. Huh?
A. I just want to get my lawyer's opinion of it.
Q. And that's fine.
A. If we can-
Q. Understand this though. If you want a lawyer, we can't talk to you anymore.
A. Yeah.
Q. Okay. And that's your right.
A. No, I don't want it. I just want to just like see if that's-that's even possible what you guys are telling me.
Q. Okay. I'll do you one better.
A. All right.
Q. I'll bring you our boss in. All right. And you can ask him.

Whenever constitutional rights are at issue, our Supreme Court has said that law enforcement officers must use "common sense." State v. Glatzmayer, 789 So.2d 297, 305 (Fla. 2001) (citing Almeida v. State, 737 So.2d 520, 526 (Fla. 1999) ). Here, common sense would require the officers to stop and afford Mr. Wilson an opportunity to contact counsel, particularly as during the custodial interrogation the Miranda warnings had not been provided. The Florida Supreme Court noted in Almeida that both sides benefit from disclosure regarding the rights available to the suspect:

Disclosure ensures that any subsequent waiver will be knowing and intelligent, and it reaffirms those qualities in a prior waiver. Nondisclosure, on the other hand, is doubly harmful: It exacerbates the inherently coercive atmosphere of the interrogation session, and it places in doubt the knowing and intelligent nature of any waiver-whether prior or subsequent.

737 So.2d at 525 (footnote omitted).

The surrounding context in which Mr. Wilson's words were spoken is also important. See State v. Sepanik, 110 So.3d 977, 980 (Fla. 2d DCA 2013). Here, context adds to the conclusion that Mr. Wilson was seeking to consult with his attorney and was invoking his right to do so. Indeed, he made the request twice. He was not only discouraged from doing so, he was offered the advice of a senior law enforcement officer as a better alternative. The impact was to " 'steamroll' the suspect." See Almeida, 737 So.2d at 525. That is, "to actively promote the very coercion that Traylor was intended to dispel." Id. (citing Traylor, 596 So.2d at 966 ).

As to Mr. Wilson's first basis for suppression, we conclude that Mr. Wilson was subjected to a custodial interrogation and officers failed to provide him Miranda warnings, resulting in a presumption of compulsion. See Elstad, 470 U.S. at 307, 105 S.Ct. 1285. Further, he was denied his right to the assistance of counsel. Consequently, Mr. Wilson's statement elicited prior to the administration of Miranda warnings was not voluntarily given and should have been suppressed.

C. Coercion

Next, Mr. Wilson contends that his statement should have been suppressed because it was obtained by improper coercion. In Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Court held that, under the Due Process Clause of the Fourteenth Amendment, certain interrogation techniques are forbidden. Those "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." Id.

Discussing the Due Process Clause's application to interrogation techniques, Chief Justice Rehnquist, writing for the Supreme Court, observed that "coercive government misconduct was the catalyst for this Court's seminal confession case, Brown v. Mississippi, 297 U.S. 278 [56 S.Ct. 461, 80 L.Ed. 682] (1936)." Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Furthermore, "the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching." Id. And while police overreaching is a focus, it is not the sole focus; there must be a nexus between the police overreaching and the suspect's confession. Id. at 165, 107 S.Ct. 515.

"[A] main focus of Florida confession law has always been on guarding against one thing-coercion." Traylor, 596 So.2d at 964. A statement obtained as a result of overreaching or coercive police conduct is subject to exclusion on due process grounds. Baptiste v. State, 179 So.3d 502, 506 (Fla. 1st DCA 2015) ; see also Brewer v. State, 386 So.2d 232, 235 (Fla. 1980). In determining whether the confession was voluntary, we use the identical standard used in federal court prosecutions. See Brewer, 386 So.2d at 235. The inquiry is whether the confession was the product of free will and rational choice. Martin, 107 So.3d at 298.

A confession or statement is determined to be involuntary where, considering the totality of the circumstances, we "conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position, due to the officer's conduct." Baptiste, 179 So.3d at 506 (quoting Ramirez v. State, 15 So.3d 852, 856 (Fla. 1st DCA 2009) ); see Traylor, 596 So.2d at 964 (stating coercion is not limited to direct promises or threats; "[i]t is sufficient, if the attending circumstances, or declarations of those present, be calculated to delude the prisoner as to his true position, and exert an improper and undue influence over his mind" (quoting Simon v. State, 5 Fla. 285, 296 (1853) ) ); Brewer, 386 So.2d at 235-36.

While evaluating the totality of circumstances surrounding the confession, the court must examine any promise or misrepresentation made by a state actor to the accused. Martin, 107 So.3d at 298. The challenged conduct must constitute outrageous behavior, and it must be established that the improper police conduct, to wit, the outrageous behavior, had a causal nexus to the confession. Bussey v. State, 184 So.3d 1138, 1141 (Fla. 2d DCA 2015). It is the State's burden to prove by a preponderance of the evidence that the statement was freely and voluntarily given. Martin, 107 So.3d at 293.

This court in Bussey reiterated the long-standing rule that "a confession cannot be obtained through direct or implied promises." Bussey, 184 So.3d at 1141 (quoting Johnson v. State, 696 So.2d 326, 329 (Fla. 1997) ). In Brewer, a confession given in response to threats and promises was involuntary and inadmissible where "[t]he officers raised the spectre of the electric chair, suggested that they had the power to effect leniency, and suggested to the appellant that he would not be given a fair trial." 386 So.2d at 235. However, simply advising a suspect of the potential consequences of a crime does not constitute a threat, and encouraging cooperation with law enforcement does not constitute coercive conduct. Bussey, 184 So.3d at 1141. Like in Bussey and the cases reviewed therein, we examine the totality of the circumstances surrounding the confession.

Mr. Wilson was presented with two options: he could either cooperate and be the one who obtained the benefit of the officers' assistance and influence with the appropriate authorities, such as the State Attorney's Office and the trial court, or he could continue to deny involvement, be arrested as soon as the next day, and the prosecution will "hammer you.... [A]s hard as they possibly can." Pressure alone does not convert a confession into an involuntary statement. However, the record in this case reveals circumstances, including the absence of Miranda warnings and certain statements by the officers calculated to delude Mr. Wilson as to his true position, exerted an improper and undue influence over Mr. Wilson's mind such that we cannot say that his confession was freely and voluntarily given.

The confession here followed suggestions by the officers that they had the power to effect leniency and "save" Mr. Wilson's life. Cf. Brewer, 386 So.2d at 233-34. While the death penalty was not on the table in this case as it was in Brewer, the officers stated that Mr. Wilson was a suspect in a "string of robberies," noted that this was "a 10/20/Life crime," and made it clear that Mr. Wilson was looking at significant prison time if he failed to cooperate and give a statement. They presented themselves as his only option to avoid this fate and promised to recommend probation.

We have not overlooked the fact that the officers spoke in terms of recommendations, and the sergeant informed Mr. Wilson that the officers could give no guarantee as to the sentence he would receive. However, these statements were undermined by the officer's representation that, in sixteen years, the State had always taken the officer's recommendation. The long-time officers used their seniority to offer unrealistic hope in the form of assurances that their recommendation of probation would be accepted if Mr. Wilson would just tell them the truth about his involvement in the robbery.

The officers exacerbated the coercive impact of the misrepresentations when Mr. Wilson asked to call his attorney and get his opinion about the deal being presented.

In response to this request, one officer stated: "I'll do you one better.... I'll bring you our boss in. All right. And you can ask him." Mr. Wilson stated he wanted to get his lawyer's opinion, he was offered the sergeant's opinion as a better alternative, and, having received the sergeant's opinion, Mr. Wilson provided his confession. All of this took place without Mr. Wilson having been given Miranda warnings.

We find that, under the totality of the circumstances, the suggestions that the officers could effect such leniency, coupled with the representation that the sergeant's opinion was superior to that of his own counsel, amount to outrageous police conduct. Further, we find a clear nexus between the outrageous conduct and Mr. Wilson's confession. Therefore, we conclude that the confession was not freely and voluntarily given. Such a coerced confession should have been suppressed.

III. HARMLESS ERROR ANALYSIS

The erroneous admission of Mr. Wilson's confession is subject to a harmless error analysis. See McAdams, 193 So.3d at 843. Pursuant to State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986), the harmless error test requires the State "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction."

In analyzing the impact the error had on the verdict, we must examine both the permissible evidence presented to the jury for consideration and the impermissible evidence that may have influenced the jury. Id. In this case, the improperly admitted statement was the primary if not the only evidence tying Mr. Wilson to the robbery. Thus, we cannot conclude that the erroneous admission of the confession did not contribute to the convictions in this case.

IV. CONCLUSION

We conclude that Mr. Wilson's statement should have been suppressed because he was subjected to custodial interrogation and did not receive Miranda warnings. We further conclude that the statement should have been suppressed as it was coerced through improper police conduct, and he was denied his right to counsel. The trial court erred in admitting Mr. Wilson's statement, and that error was not harmless. Accordingly, we reverse and remand for a new trial at which the evidence of his statement must be suppressed.

Reversed and remanded.

KHOUZAM and BADALAMENTI, JJ., Concur.

      See § 775.087(2)(a), Fla. Stat. (2012).

      The 10/20/Life statute carries a minimum mandatory prison term, a fact likely known to these experienced law enforcement officers. See § 775.087(2)(a).


text:
    Dantrell J. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5680
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Dantrell Jenkins was charged and convicted of sexual battery upon a person less than twelve years of age and sentenced to life in prison. On appeal, he argues that the trial court failed to conduct an adequate hearing before deciding to admit a child hearsay statement. We disagree and affirm.

Jenkins is a close relative of the victim's father, had a close relationship with the victim and her mother, and often came to their house. Jenkins admitted that in the early morning hours one day, when the victim was eight years old, he came to the house high on various drugs and lay down next to her. Sometime later, the victim's father walked into the living room and saw the victim with Jenkins' penis in her mouth. Jenkins contends that he woke up when the victim, on her own, took Jenkins' pants off and began performing oral sex on him. Just as he woke up, and before he could stop her, he claims, her father walked in and saw them. The victim gave a different account of the events, which included Jenkins waking her up, grabbing her by the back of the head, and forcing her to put his penis in her mouth.

The victim told her mother that her father had walked in that morning and saw Jenkins' penis in her mouth; she mentioned no other details, such as who initiated the act. The State filed a notice to rely on this statement at trial as the statement of a child victim pursuant to section 90.803(23), Florida Statutes.

At the child-hearsay hearing, the victim's mother told the trial court what the victim told her. The defense conceded that Jenkins had already admitted that the incident occurred, and only argued as to who initiated it. But the defense argued that the victim's mother was not a credible source, and believed some of her hearing testimony was incompatible with her previous interview with child services personnel, in which she purportedly minimized her knowledge of the incident. If the trial court continued the hearing, the defense asserted, it could produce the mother's interviewer and demonstrate the mother's inconsistency and lack of credibility. If she was found to not be a credible witness, the statement must be excluded.

The trial court stated that any concerns it might have as to the mother's credibility were alleviated by Jenkins' own admission. The only statement the victim made to her mother-that her father walked in and saw her and Jenkins-was undisputed by Jenkins. The court declined to continue the hearing and held that, so long as the victim testified at trial, her statement to her mother would be admitted.

Evidence at trial included the testimony of the victim, her mother and father, the defense witness intended to impeach the mother, and the individuals who conducted the interviews of both the victim and Jenkins, as well as the recorded interviews themselves. The jury returned a guilty verdict within twelve minutes.

Jenkins does not argue that the trial court's findings were inadequate under section 90.803(23), Florida Statutes, but only that it should have continued the hearing to allow the defense to present an impeachment witness. Jenkins presents no authority indicating that a trial court must continue a properly scheduled hearing so the defense may produce impeachment witnesses, and we decline to impose such a rule. Because there was competent, substantial evidence supporting the reliability of the statement at issue, the trial court did not abuse its discretion. See Perez v. State , 536 So.2d 206, 211 (Fla. 1988). This is especially the case when the defendant stipulates to the truth of the statement. See id. at 212 (Shaw, J., concurring specially) ("Even more significantly, the hearsay statements were consistent with the confession of petitioner .... Under these circumstances, the hearsay corroborated the confession and served only to prove corpus delicti by showing that a crime had been committed."). Had there been any error, it would have been harmless, as Jenkins admitted that the act occurred in a post- Miranda recorded interview played before the jury.

AFFIRMED .

B.L. Thomas, C.J., and Makar and Winokur, JJ., concur.

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