Opinion
No. 3D99-2547.
December 20, 2000.
An Appeal from the Circuit Court for Miami Dade County, Victoria Platzer, Judge.
Philip L. Reizenstein, Miami, for appellant.
Robert A. Butterworth, Attorney General, and M. Rebecca Springer, Assistant Attorney General (Fort Lauderdale), for appellee.
Before SCHWARTZ, C.J., and GERSTEN, and GREEN, JJ.
Appellant, Osmel Alvarez ("defendant"), appeals his sentences and convictions for armed sexual battery, aggravated battery, kidnapping with a firearm, and impersonating a police officer while committing a felony. We affirm the judgments and convictions.
However, as correctly conceded by the State, the trial court erred in improperly designating the defendant's conviction for impersonating a police officer during the commission of a felony, as a life felony. This crime is designated as a second degree felony, pursuant to Section 843.08, Florida Statutes (2000). Therefore, we remand this cause for the limited purpose of correcting the scriveners error in the written judgment.
Affirmed; remanded with instructions.
GERSTEN and GREEN, JJ., Concur.
The only arguable question on this appeal concerns the admissibility of two sets of incriminating statements made by the defendant after initially invoking his Miranda rights. I believe, however, that:
(a) The first remarks were not inadmissible as made in response to unauthorized police questioning; rather, they were volunteered by the defendant after he was told the serious nature of the charges against him, see Davis v. State, 698 So.2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S.Ct. 1076, 140 L.Ed.2d 134 (1998); State v. Nguyen, ___ So.2d ___, 1998 WL 472602 (Fla. 2d DCA Case no. 97-04796, opinion filed, August 12, 1998) [23 FLW D1904]; Montoya-Navia v. State, 691 So.2d 1144 (Fla. 3d DCA 1997);and
(b) those statements themselves constituted a self-"initiation" of "communication, exchanges or conversations with the police," Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981), which justified renewed interrogation after he signed an appropriate Miranda waiver, see Durocher v. State, 596 So.2d 997 (Fla. 1992); Kight v. State, 512 So.2d 922 (Fla. 1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988); Craig v. State, 599 So.2d 170 (Fla. 3d DCA), review denied, 605 So.2d 1263 (Fla. 1992); William E. Ringel, 3 Searches Seizures, Arrests and Confessions § 28.2(a)(1) (2000), thus validating the second confession.
For these reasons, I agree that the statements were correctly introduced into evidence and therefore concur in affirmance.