          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                         DAVID CHARLES WOODSON,
                                 Appellant,

                                        v.

                              STATE OF FLORIDA,
                                   Appellee.

                                 No. 4D19-3035

                                  [July 1, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562017CF001411B.

   Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel,
Office of Criminal Conflict and Civil Regional Counsel, Fourth District,
West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

   David Charles Woodson appeals his convictions and sentences for
possession with intent to sell or deliver heroin; use or possession of drug
paraphernalia; and possession with intent to sell or deliver cocaine. He
raises multiple issues on appeal, and we affirm without comment on all
but one. For his final issue, Woodson argues the court erred when it
considered a statement suppressed based on Miranda 1 violations at
sentencing. We affirm.

                                  Background

   Before trial, Woodson moved to suppress a statement made to police—
that he was selling drugs for money—asserting that it was obtained in
violation of Miranda because the police failed to advise him of each


1   Miranda v. Arizona, 384 U.S. 436 (1966).
required warning. The State conceded the statement the police obtained
was in violation of Miranda and agreed not to use the statement at trial.

   The police arrested Woodson after undercover detectives observed him
and other occupants of a van allegedly conducting drug transactions. At
sentencing, Woodson told the court that he made a “stupid, stupid
mistake” and that he had “little rocks” on him. He also stated that there
were two other people in the van participating in activity that Woodson
recognized he “shouldn’t [have] been around.”

   Woodson’s scoresheet reflected a lowest permissible sentence of 40.5
months in prison and a maximum sentence of thirty years. Woodson’s
counsel requested the lowest possible sentence. In response, the State
recommended one year in jail on the paraphernalia count and fifteen years
in prison each on the cocaine and heroin counts, arguing that Woodson
had several prior drug offenses. The State also argued that Woodson’s
statement to the police was relevant to sentencing, even though it was
inadmissible at trial.

   The circuit court stated, “Okay,” without more, and declined to give
reasons for adopting the State’s sentencing recommendation.

                                 Analysis

   Woodson argues the circuit court erred when it considered a
statement—suppressed from trial based on Miranda violations—during
sentencing. See, e.g., Mendoza-Magadan v. State, 217 So. 3d 112, 113
(Fla. 4th DCA 2017) (holding that a sentence within statutory limits is not
subject to this Court’s review unless “the facts establish a violation of a
specific constitutional right during sentencing” (quoting Howard v. State,
820 So. 2d 337, 339–40 (Fla. 4th DCA 2002))). The State argues there is
no Florida case holding that a court cannot consider a suppressed
statement during sentencing.

   Miranda “established four warnings that are required prior to
questioning when a person has been ‘taken into custody or otherwise
deprived of his freedom of action in any significant way.’” Morris v. State,
212 So. 3d 383, 384–85 (Fla. 4th DCA 2017) (en banc) (quoting Stansbury
v. California, 511 U.S. 318, 322 (1994)).

   “A Miranda violation . . . affords a bright-line, legal presumption of
coercion, requiring suppression of all unwarned statements.” Ross v.
State, 45 So. 3d 403, 413 (Fla. 2010) (quoting Oregon v. Elstad, 470 U.S.
298, 306 n.1 (1985)). But it does not require the banishment of the

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unwarned statements from the proceeding. For example, the State can
use for impeachment during cross-examination a statement previously
suppressed during the State’s case-in-chief. See, e.g., Harris v. New York,
401 U.S. 222, 226 (1971) (“We hold, therefore, that petitioner’s credibility
was appropriately impeached by use of his earlier conflicting statements.”);
Ross, 45 So. 3d at 413 & n.8 (Fla. 2010) (“Such statements, however, can
be used as impeachment during cross-examination.” (citing Elstad, 470
U.S. at 307)).

   The Eleventh Circuit recently addressed for the first time the
government’s use of statements obtained in violation of Miranda at
sentencing. See United States v. Jackson, 713 F. App’x 963, 967 (11th Cir.
2017). In Jackson, the United States called an officer to testify at
sentencing about statements the defendant made after his arrest. Id. at
965. As in this case, the United States agreed before trial that it would
not use the defendant’s statements during its case-in-chief. Id. at 965 n.2.
The issue on appeal was the federal district court’s consideration at
sentencing of the statements obtained in violation of Miranda. Id. at 967.

    Relying on decisions from the Fourth, Sixth, and Seventh Circuits, the
Eleventh Circuit held that a court can consider at sentencing a statement
obtained in violation of Miranda if the record shows that the statement was
voluntary and reliable. Id. at 968 (citing United States v. Graham-Wright,
715 F.3d 598, 601 (6th Cir. 2013); United States v. Nichols, 438 F.3d 437,
442 (4th Cir. 2006); Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1388
(7th Cir. 1994) (en banc)).

    Woodson asks that we reject these holdings. He argues “the privilege
against self-incrimination provided in the Florida Constitution offers more
protection than the right provided in the Fifth Amendment to the United
States Constitution.” State v. Horwitz, 191 So. 3d 429, 439 (Fla. 2016)
(citing Rigterink v. State, 66 So. 3d 866, 888 (Fla. 2011)). He also argues,
correctly, that the Florida Supreme Court has held that the exclusionary
rule applies in probation revocation hearings, requiring the exclusion of
statements obtained in violation of Miranda. See State v. Scarlet, 800 So.
2d 220, 222 (Fla. 2001) (approving Scarlet v. State, 766 So. 2d 1110 (Fla.
3d DCA 2000)).

     But our supreme court has also determined that there is “a distinction
between the full array of rights due to a defendant before conviction and
the limited rights available during sentencing proceedings.” Peters v.
State, 984 So. 2d 1227, 1232 (Fla. 2008). As the court stated in Peters,
“[i]t is well-established . . . that a defendant’s rights at sentencing differ
considerably from his pre-conviction rights.” Id. (quoting United States v.

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Jackson, 453 F.3d 302, 305 (5th Cir. 2006)). The court held that “rights
available to the defendant awaiting sentencing are limited because the
interest at stake at the sentencing stage is limited.” Id. (citations omitted).

    Accepting Woodson’s argument would cause tension with these Florida
Supreme Court holdings. Instead, we adopt the Eleventh Circuit’s holding
in Jackson: The state can use a statement obtained in violation of Miranda
at sentencing if the record shows the statement was voluntary and reliable.
713 F. App’x at 968.

   Now we apply that test to this case. The substance of Woodson’s motion
to suppress was that the deputy failed to advise him of two of the four
Miranda prongs and failed to advise him that he had a right to consult an
attorney before and during interrogation as required by the United States
and Florida Constitutions.

   The State also correctly points out that, during allocution (before the
prosecutor mentioned the suppressed statements), Woodson admitted to
making a “stupid, stupid mistake” and having “little rocks” on him, and he
apparently recognized that he “shouldn’t [have] been around” the van
where he was arrested.

   Nothing suggests the statement to police—that Woodson was selling
drugs to make some money—was involuntary or unreliable. If the circuit
court considered the suppressed statement, it did not err in doing so.

                                 Conclusion

   We hold that the State can use a statement obtained in violation of
Miranda at sentencing if the record shows the statement was voluntary
and reliable. As a result, we affirm Woodson’s convictions and sentences.

   Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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