
    In the Interest of M. L. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-2.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    Rehearing Denied June 9, 1981.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, a juvenile, appeals his adjudication of guilt and commitment to HRS, arguing that the trial judge erred in denying his motion to suppress certain incriminating statements made to Officer Crum-mit. We agree and reverse.

Appellant was arrested in connection with a burglary by Officer Crummit. During questioning, appellant made certain incriminating oral statements and gave what was purported to be a written statement. Appellant challenges the voluntariness of the confession, arguing that Officer Crum-mit did not comply with Rule of Juvenile Procedure 8.290(d)(4). The rule states:

(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.

Officer Crummit was the only person to witness appellant’s signature on the waiver of rights form.

The state argues that noncompliance with the rule of juvenile procedure is a mere technicality which should not invalidate an otherwise voluntary statement. The state urges a “totality of the circumstances” standard in judging the voluntariness of juvenile confessions similar to that used in adult criminal cases. See Jordan v. State, 334 So.2d 589 (Fla.1976) which held: “[T]here is no constitutional requirement that a waiver is valid only if written and signed in the presence of two witnesses .... ” See also State v. Francois, 197 So.2d 492 (Fla.1967); Postell v. State, 383 So.2d 1159 (Fla.3d DCA 1980); and T. B. v. State, 306 So.2d 183 (Fla.2d DCA 1975), pertaining to the totality of the circumstances standard in juvenile cases.

In the case before us, appellant can neither read nor write except to sign his name. His purported written statement is completely unintelligible. There is no way one can decipher its meaning. At the suppression hearing Officer Crummit testified he could not understand the written statement since it was not in sentence form. Appellant testified he told Crummit he could not read or write. Crummit could not remember whether appellant told him this or not.

Regarding the oral statement, Crummit testified he read appellant his rights from a Miranda warning form, but he did not read the waiver of rights section. The officer stated that he explained the waiver section to appellant and gave him the form to read and sign.

Giving an illiterate juvenile a waiver of rights form to read and sign is, to say the least, a totally useless act. A more thorough inquiry as to appellant’s ability to read and comprehend the waiver would have revealed the futility of the act. To safeguard the rights of the accused and to assist the state in showing the voluntariness of waivers of counsel, the supreme court has mandated by rule that two witnesses attest to the voluntary execution of a juvenile’s waiver of his right to counsel. We are convinced under the facts of this case that the failure to comply with the rules of juvenile procedure in conjunction with appellant’s inability to read or write invalidates his confession. In juvenile cases the state bears a heavy burden in establishing that the waiver was intelligently made. T. B. v. State, supra. We conclude that the state did not carry its burden of proving that appellant voluntarily and intelligently waived his right to counsel.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

SHAW and WENTWORTH, JJ., concur.

ERVIN, J., dissenting with opinion.

ERVIN, Judge,

dissenting.

Doerr v. State, 383 So.2d 905 (Fla.1980), recognizes that an arresting officer’s failure to notify the parents of a minor child immediately after taking him into custody does not per se invalidate a confession, but rather is a factor which the court may consider in determining the voluntariness of the confession. The same standard governs the facts in the present case. The failure of the custodial authorities to obtain two persons to sign a waiver of rights form as attesting witnesses is only one factor to be considered in determining whether the statement was voluntarily given. By analogy, Florida Rule of Criminal Procedure 3.111(d)(4), the counterpart of Florida Rule of Juvenile Procedure 8.290(d)(4), has been interpreted by the Florida Supreme Court as not requiring the suppression of a statement which is otherwise shown to be voluntary simply because the waiver form was not executed by two witnesses. See Jordan v. State, 334 So.2d 589 (Fla.1976). The court held there that a defendant need not expressly waive his rights and that “[t]here was an implicit waiver in the act of the appellant in proceeding to give the statement after he had been given an explanation of his rights and had indicated comprehension of that explanation.” Id. at 592. In my view the same conclusion should also be reached here.

In the case at bar, the interrogating officer stated that before he obtained the statement, he read to appellant, who was nearly 17 years of age at the time of the offense, his constitutional rights which were just above the waiver portion of the form. The form was the customary type which advised the defendant, among other things, that he did not have to make a statement; that he had the right to an attorney, and that he had the right to stop answering questions at anytime and consult with either an appointed or privately employed attorney. When asked if he understood his rights, the appellant replied that he did, and signed the form. The officer also denied threatening appellant in any way, denied that appellant appeared intoxicated, and finally denied that any promises were made to appellant in exchange for his statement. Although the officer stated that he could not remember whether appellant had told him he could not read, I do not think that this one circumstance, when weighed against all others, militates against a finding that the confession was knowingly and voluntarily given.

I would affirm. 
      
      . Indeed, Florida Rule of Juvenile Procedure 8.290(d)(3) supports the conclusion that waiver can only be determined after considering the totality of all the circumstances, including mental condition, age, educational experience, etc.
     