Opinion
No. 80-432.
May 20, 1981. Rehearing Denied June 11, 1981.
Appeal from the Circuit Court, Volusia County, Robert E. Lee, Jr., J.
Jim Smith, Atty. Gen., Tallahassee, and Evelyn C. Golden, Asst. Atty. Gen., Daytona Beach, for appellant/cross-appellee.
James B. Gibson, Public Defender, and Ronald K. Zimmet, Asst. Public Defender, Daytona Beach, for appellee/cross-appellant.
The juvenile court judge found that appellee, a child, was given Miranda warnings and that the child was of sufficient age and intelligence to comprehend his circumstances and such rights. Nevertheless, the judge granted a motion to suppress the child's statement because (1) no inquiry was made by the police officers as to the child's actual comprehension of his Miranda rights, (2) the child was taken into custody and to the police department for questioning for approximately one hour rather than being taken directly to a detention or crisis home ( see § 39.03(3), Fla. Stat. (1979)) and (3) there was no adult notified or present to assist the child during the police questioning.
The police are only required to give Miranda warnings, not to make an evaluation of the accused's comprehension of his rights. If age, intelligence, education and experience gives a child the ability to comprehend the meaning and effect of a voluntary incriminating statement and of the effect of a waiver, the juvenile may waive his rights under Miranda and make an admissible confession without the presence, or consent, of counsel, parents or other responsible adults to act on his behalf. T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975). Section 39.03(3), Florida Statutes (1979), does not prohibit interrogation after the child is taken into custody and before a determination is made to release or detain the child. Doerr v. State, 383 So.2d 905 (Fla. 1980). Here the child had the ability to comprehend his rights and their waiver and made a knowing and voluntary waiver of his rights and confession. The order granting the motion to suppress is reversed. Appellee's cross-appeal of the trial court's interlocutory order denying a motion to dismiss is itself dismissed because this court does not have jurisdiction to consider it at this time. Fla.R.App.P. 9.140(b)(1); R.J.B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980); State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980).
REVERSED and remanded for further proceedings.
DAUKSCH, C.J., concurs.
SHARP, J., dissents with opinion.
I dissent because this record supports the trial judge's finding that the juvenile's confession was not voluntary, and therefore, his suppression of the confession should be sustained on appeal.
The juvenile was 15 years old. He had no adult who was friendly towards him, present during the one hour of questioning. His parents were (at that time) "adverse" to him, because the child's mother was the person who had informed the police he was involved in the arson matter under investigation. He was detained at the police station over one hour, and then questioned in a small room at the sheriff's department another hour by three investigators.
The court heard the tape of the child's confession and the testimony of the police officers. It concluded that although the child was intelligent, and had been properly given "Miranda" warnings, he lacked the sophistication and the proper "mental ammunition" to know whether or not he should make a statement. The court felt the police should have inquired further than the basic Miranda warning form, to be sure the child comprehended the consequences of his statements.
Whether or not a knowing waiver of rights has occurred is a question primarily for the trial judge, and if there is support in the record, his determination should be sustained. He should make his determination based on the totality of the circumstances and where a child is involved, the State should bear a heavier burden to show the waiver was intelligently made. A perfunctory reading of Miranda rights, as printed on a card, may not be sufficient to enable a child to make an intelligent waiver where as in this case, the child was unsophisticated and estranged from his parents.
State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979); State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979).
Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975).
T.B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975); Arnold v. State, 265 So.2d 64 (Fla. 3d DCA 1972); cert. denied, 272 So.2d 817 (Fla. 1973).