            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                   _____________________________

                           No. 1D16-1168
                   _____________________________

CURTIS HALL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   _____________________________


On appeal from the Circuit Court for Leon County.
Terry Lewis, Judge.

                            June 4, 2018



PER CURIAM.

     Curtis Hall appeals from his convictions and sentences for two
counts of second-degree murder and two counts of armed robbery
with a firearm, raising three issues for our consideration. Hall
argues in his first issue that the trial court erred when it denied
his motion to suppress statements made during a police
interrogation. He argues in his third issue that the Criminal
Punishment Code is unconstitutional as applied to juvenile
defendants. We affirm for the reasons discussed below. 1



    1    We affirm as to the second issue without further comment.
                                  I.

     Hall was charged with two counts of first-degree murder and
two counts of armed robbery with a firearm. It was alleged that
Hall, who was seventeen years old at the time, robbed and killed
two brothers who lived together in Hall’s apartment complex. Hall
was interviewed by the police on November 2 and November 15,
2012, regarding the crimes after witnesses placed him near the
scene. Prior to trial, Hall moved to suppress statements he made
to the police during the November 15, 2012, interrogation,
including a confession to committing the murders, arguing that he
did not knowingly and intelligently waive his Fifth Amendment 2
rights.

     The trial court found that Hall understood his rights and
validly waived them. Hall was found guilty of two counts of the
lesser-included offense of second-degree murder and two counts of
armed robbery. The jury made a specific finding that Hall did not
have actual possession of a firearm during the crimes. Hall’s
scoresheet indicated a lowest permissible sentence of 369.15
months in prison and a statutory maximum sentence of life in
prison. He was sentenced to fifty-five years in prison, to be followed
by life on probation, with a chance for judicial review after fifteen
years pursuant to section 921.1402, Florida Statutes (2014).

                                 II.

     In reviewing a trial court’s ruling on a motion to suppress,
"[t]he standard of review for the trial judge's factual findings is
whether competent substantial evidence supports the judge's
ruling” and the “standard of review for the trial judge’s application
of the law to the factual findings is de novo." Butler v. State, 706
So. 2d 100, 101 (Fla. 1st DCA 1998). This Court gives deference to
the trial court’s factual findings and credibility determinations
based on live testimony but gives less deference when, based on
the nature of the evidence under review, “the trial court does not
have a special vantage point.” 3 Beckham/Tillman v. Bennett, 118

    2   U.S. Const. amend. V.
    3The interrogations at the police station were recorded and
we have reviewed the video of the November 15 interrogation in
                                  2
So. 3d 896, 898 (Fla. 1st DCA 2013) (quoting State v. Sepanik, 110
So. 3d 977, 978 (Fla. 2d DCA 2013)).

     All persons have a constitutional right against self-
incrimination in any criminal matter. U.S. Const. amend. V; Art.
I, § 9, Fla. Const. The Supreme Court determined in Miranda v.
Arizona that the State “may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-
incrimination.” 384 U.S. 436, 444 (1966). A defendant may waive
so-called Miranda rights, but only if the defendant is informed of
those rights and “the waiver is made voluntarily, knowingly and
intelligently.” Id.

     To determine whether a defendant’s waiver of Miranda rights
is voluntary, knowing, and intelligent, courts employ a “totality of
the circumstances” test, which involves evaluation of factors
including “(1) the manner in which the Miranda rights were
administered, including any cajoling or trickery; (2) the suspect’s
age, experience, background and intelligence;” (3) whether the
suspect’s parents were contacted and the juvenile given an
opportunity to consult with parents or an attorney before
questioning; (4) whether the questioning took place in the police
station; and (5) whether the interrogators secured a written
Miranda waiver. Ramirez v. State, 739 So. 2d 568, 576 (Fla. 1999)
(citations omitted). Where a confession is obtained after the
administration of the Miranda warnings, the State bears a “heavy
burden” to demonstrate by a preponderance of the evidence that
the defendant knowingly and intelligently waived his or her
privilege against self-incrimination and the right to counsel. Id. at
575.

     By applying the Ramirez factors to Hall’s November 15
interview, we conclude the trial court properly denied Hall’s
motion to suppress his post-Miranda statements. As to the manner
in which his rights were read to him, Hall was interviewed at the
police station while he was there based on an arrest for unrelated
charges. Before any questioning occurred, an officer read Hall his

addition to the transcript of the suppression hearing.

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Miranda rights and Hall executed a written waiver of those rights.
While the record indicates the officer read the rights extremely
quickly, this was the second time in two weeks that Hall had
waived his Miranda rights and indicated a desire to talk to police
regarding the murders. During the November 2 interview, an
officer read Hall his Miranda rights and Hall signed a written
waiver of those rights after informing the officers he had no
questions about the waiver. During that interrogation, another
officer reiterated that Hall had the right to refuse to answer
questions. While we do not condone the officer’s cursory review of
Hall’s Miranda rights during the November 15 interview, we agree
with the trial court’s assessment that when taken in context, the
officer’s actions were not coercive, misleading, or deceptive so as to
undermine Hall’s ability to understand the rights he was waiving.

     Consideration of Hall’s age, experience, and background
weigh in favor of finding a voluntary waiver. When the murders
occurred, Hall was within three months of his eighteenth birthday.
He was also very experienced in the criminal justice system,
having been arrested at least thirteen times, and as noted, he had
been read his Miranda rights at least once two weeks prior to his
November 15 interview. See Carter v. State, 697 So. 2d 529, 534
(Fla. 1st DCA 1997) (noting that prior experience with the criminal
justice system is one factor in determining whether a waiver is
knowing and voluntary). During that November 2 interview, Hall
demonstrated his understanding of his right to terminate the
interview. Additionally, the State presented evidence that during
a police interview in an unrelated case in 2009, when Hall was
thirteen years old, he refused to speak with police until his mother
was present. At that time he was arrested and read his Miranda
rights as well. There was testimony that he waived his Miranda
rights in at least two other prior cases and decided to talk to police.

     Factors weighing against a finding of a voluntary waiver are
Hall’s intelligence 4 and the fact that he was not able to consult
with his mother prior to questioning. However, these factors alone
are not dispositive of a whether a defendant can voluntarily waive


    4 The record indicates Hall had an IQ well below average and
read at a level well below his age.

                                  4
his rights. See, e.g., Bevel v. State, 983 So. 2d 505, 516 (Fla. 2008).
This Court has found a valid Miranda waiver where a sixteen-
year-old defendant was “borderline mentally retarded” and
functioned at the level of a child between eight and ten years of
age. Brookins v. State, 704 So. 2d 576, 578 (Fla. 1st DCA 1997).
There, we noted that even though the defendant’s mother was
never contacted and the defendant had a low I.Q., the trial court
found a knowing waiver after personally observing the defendant
and evaluating testimony from the officers who questioned him
and a psychologist who evaluated him. Here, the State introduced
expert testimony that despite Hall’s lower intelligence, he was
capable of understanding his Miranda rights. Further, the video of
Hall’s interrogation does not indicate any confusion as to his
rights. He was able to discuss the case with officers with a calm
and conversational demeanor and provide relevant facts.

      We reject Hall’s contention that he was tricked by detectives
and gave a confession only because they promised him he could go
home if he did so. While the officers urged Hall to take control of
his life and tell his side of the story, they did not promise Hall that
he could go home if he confessed. To the extent Hall may have
believed he could go home if he confessed, we agree with the trial
court that this was due to wishful thinking on his part rather than
deception or trickery by the officers. Likewise, nothing in the
record suggests that the absence of Hall’s mother impacted the
voluntariness of Hall’s waiver of his rights.

     Given the totality of the circumstances, including the lack of
threats or coercion, Hall’s multiple prior waivers of Miranda in
other cases, and other evidence that he understood his rights and
the consequences of abandoning them, we hold that the trial
court’s finding of a voluntary, knowing, and intelligent waiver was
proper. See Padmore v. State, 743 So. 2d 1203 (Fla. 4th DCA 1999)
(holding that a sixteen-year-old defendant knowingly,
intelligently, and voluntarily waived his Miranda rights, although
he was intellectually slow and police did not attempt to contact his
mother until more than two hours into the interview; the
defendant had been read his rights and waived them on previous
occasions, he was not threatened during the police interview or
promised anything in exchange for his confession, and his taped


                                  5
statement demonstrated that he was able to plan, think rationally,
and relate relevant facts in good detail).

                                 III.

    In Hall’s third issue on appeal, he asserts that the Criminal
Punishment Code (“CPC”) is unconstitutional as applied to
juvenile offenders. Relying on Graham v. Florida, 560 U.S. 48
(2010), Miller v. Alabama, 567 U.S. 460 (2012), and related cases,
he alleges the CPC scoresheet, which determines the lowest
permissible sentence that must be imposed absent a downward
departure, fails to allow a trial court to consider that juveniles are
constitutionally different from adults for sentencing purposes.

      The calculation of a lowest permissible sentence on the CPC
scoresheet does not prevent the trial court from taking a juvenile’s
youth and its attendant characteristics into account when
imposing a sentence. Under the CPC, the trial court may take any
constitutionally permissible factor into account when sentencing a
defendant to any term between the lowest permissible sentence
and the statutory maximum. Furthermore, in response to Graham
and Miller, the Florida Legislature adopted chapter 2014-220,
Laws of Florida, which has been codified in sections
775.082, 921.1401, and 921.1402, of the Florida Statutes. That
law provides for individualized sentencing consideration prior to
the imposition of a life sentence on a juvenile offender and for
judicial review of certain sentences imposed upon juveniles who
commit capital, life, or first-degree felonies punishable by life. The
record reflects that Hall was provided with an individualized
sentencing hearing pursuant to section 921.1401, during which the
trial court took into account Hall’s age and the factors listed in
section 921.1401(2) when imposing a sentence that was less than
life in prison but well beyond the 369.15-month lowest permissible
sentence. Finally, as noted, the trial court entered an order that
Hall would be eligible for review of his sentence after fifteen years
in prison pursuant to section 921.1402(c), Florida Statutes. At that
time, the trial court will once again take into account Hall’s “age,
maturity, and psychological development at the time of the
offense” when deciding whether to modify the sentence and allow
Hall’s early release. See § 921.1402(6)(f), Fla. Stat. (2014). As such,
the lowest permissible sentence does not impermissibly prohibit

                                  6
the court from considering Hall’s youth. Cf. Montgomery v. State,
230 So. 3d 1256 (Fla. 5th DCA 2017) (twenty-five year mandatory
minimum sentence imposed on juvenile defendant for discharging
firearm not unconstitutional if the defendant is granted judicial
review provided by section 921.1402 after twenty years).

                                IV.

     Given the facts of this case, we conclude based on the totality
of the circumstances that the record supports the trial court’s
determination that Hall knowingly and intelligently waived his
constitutional rights. We also reject Hall’s claim that the Criminal
Punishment Code is unconstitutional as applied to juvenile
defendants. For the foregoing reasons, we affirm.

    AFFIRMED.

RAY, BILBREY, and KELSEY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Candice Kaye Brower, Regional Conflict Counsel, Gainesville, and
Michael J. Titus, Assistant Regional Conflict Counsel,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.




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