FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ 

Case No. 5D2023-1354 

LT Case No. 2021-CF-000253-A 

_____________________________ 

MICHAEL L. WAITE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Citrus County. 

Joel Fritton, Judge. 

Alexei V. Lizanich, of Law Offices of Melisa Militello, Inverness, 

and Steven L. Brannock and Sarah B. Roberge, of Brannock 

Berman & Seider, Tampa, for Appellant. 

Ashley Moody, Attorney General, and Jeffrey Paul DeSousa, 

Chief Deputy Solicitor General, Tallahassee, and Kristen L. 

Davenport, Assistant Attorney General, Daytona Beach, for 

Appellee.

Robert Wayne Evans, of Allen Norton & Blue, P.A., Tampa, 

Amicus Curiae, for the Florida Sheriffs Association, in support 

of Appellee. 

J. David Marsey, of Rumberger, Kirk & Caldwell, Tallahassee,

Amicus Curiae, for the Florida Police Chiefs Association, in 

support of Appellee.

August 16, 2024
2

ON MOTION FOR REHEARING, REHEARING EN BANC,

OR CERTIFICATION 

KILBANE, J.

We deny the State’s request for rehearing, rehearing en banc, 

and for certification of a question of great public importance. 

However, we withdraw our prior opinion of April 12, 2024, and 

substitute the following in its place. 

Michael L. Waite appeals a judgment entered after a nolo 

contendere plea to five counts of unlawful interception of “oral 

communication” in violation of section 934.03(1)(a), Florida 

Statutes (2020), one count of battery on a law enforcement officer, 

and one count of resisting arrest with violence. Specifically, Waite

appeals the denial of several dispositive motions to dismiss and 

suppress evidence after reserving his right to appeal. For the 

reasons set forth below, we reverse the denial of the motion to 

dismiss the unlawful interception of “oral communication”

charges. We affirm in all other respects.

Facts

This case stems from a lengthy dispute between Waite and the 

Citrus County Sheriff’s Office (“CCSO”). Since 2018, Waite 

quarreled over property boundaries with city employees and CCSO

deputies. For the duration of this dispute, Waite would report 

what he believed to be crimes to various state agencies and the 

media. As his relationship with the CCSO continued to devolve,

Waite started recording conversations with CCSO deputies.

In January 2021, Waite called 911 to report what he perceived 

to be a trespassing incident involving members of the CCSO. 

Waite insisted that he wanted to file a complaint with internal 

affairs and that he had an email ready to send. The 911 operator 

explained that she would have a supervisor give him a call back as 

she could not provide the information he was requesting. Waite 

agreed and informed the 911 operator he wanted the call to be 

recorded. Later that same day, Sergeant Edward Blair called 

Waite back. Waite recorded the three-minute phone conversation 
3

but did not inform Sergeant Blair he was doing so. Waite sent a 

copy of the audio recording of that call via email to the CCSO 

records department and requested an internal investigation.

In February 2021, Detective Jacob Chenoweth sought to 

obtain an arrest warrant based on the recorded conversation

attached to Waite’s email. The State alleged that Waite violated

section 934.03(1)(a), Florida Statutes, by unlawfully intercepting 

an “oral communication” when he recorded the conversation with 

Sergeant Blair without his consent. After obtaining the warrant, 

deputies including Captain Ryan Glaze went to execute it at 

Waite’s home. An altercation ensued, and Waite elbowed Captain 

Glaze in the face. Incident to the arrest, deputies found an audio 

recording device containing three additional recorded 

conversations with CCSO deputies.

In total, Waite was charged with five counts of unlawful 

interception of “oral communication,” battery on a law enforcement 

officer, and resisting arrest with violence. Waite filed several 

motions to dismiss and suppress including a Florida Rule of 

Criminal Procedure 3.190(c)(4) motion to dismiss the unlawful 

interception of “oral communication” charges.

1 Waite conceded 

that he did not inform the deputies he was recording the 

conversations and none of the deputies gave their consent to be 

recorded. However, Waite argued that the recorded conversations 

did not fall under the definition of “oral communication” as defined 

by section 934.02(2), Florida Statutes, because the deputies did not 

have a reasonable expectation of privacy that such 

communications were not subject to interception.

The State filed a traverse and demurrer admitting that at all 

times during the recorded conversations, the deputies were acting 

in their official capacities and added that the deputies were using 

1 The fifth count of unlawful interception of an “oral 

communication” was added at a later point in time after an 

additional recorded conversation with a deputy was uncovered 

during discovery. On appeal, the State does not contest that the 

motion to dismiss and Waite’s reservation of his right to appeal

applied to all five counts of unlawful interception.
4

office phones and cell phones. However, the State argued that 

whether someone has a reasonable expectation of privacy is an 

issue of fact for the jury and therefore the motion to dismiss should 

be denied. After a hearing, the trial court agreed with the State 

and denied Waite’s motion to dismiss. This appeal followed.

Analysis

A. Unlawful Interception of “Oral Communication” Charges

A motion to dismiss filed pursuant to Florida Rule of Criminal 

Procedure 3.190(c)(4) is reviewed de novo. Galston v. State, 943 

So. 2d 968, 970–71 (Fla. 5th DCA 2006) (citing State v. Massey, 873 

So. 2d 494 (Fla. 5th DCA 2004)). “It is only when the state cannot 

establish even the barest bit of a prima facie case that it should be 

prevented from prosecuting.” State v. Heffner, 727 So. 2d 977, 978 

(Fla. 5th DCA 1999) (quoting State v. Pentecost, 397 So. 2d 711, 

712 (Fla. 5th DCA 1981)). As such, “the motion is somewhat 

similar to a motion for summary judgment in a civil case.” State 

v. Jones, 642 So. 2d 804, 805 n.2 (Fla. 5th DCA 1994) (citing Ellis

v. State, 346 So. 2d 1044, 1045 (Fla. 1st DCA 1977); State v. Giesy,

243 So. 2d 635, 636 (Fla. 4th DCA 1971)).

Under section 934.03(1)(a), it is unlawful for any person to 

intentionally intercept or endeavor to intercept any wire, oral, or 

electronic communication. § 934.03(1)(a), Fla. Stat. (2020); see 

also McDade v. State, 154 So. 3d 292, 297 (Fla. 2014). “‘Oral 

communication’ means any oral communication uttered by a 

person exhibiting an expectation that such communication is not 

subject to interception under circumstances justifying such 

expectation and does not mean any public oral communication 

uttered at a public meeting or any electronic communication.” Id.

§ 934.02(2), Fla. Stat. (emphasis added). “[F]or an oral 

conversation to be protected under section 934.03 the speaker 

must have an actual subjective expectation of privacy, along with 

a societal recognition that the expectation is reasonable.” State v. 

Smith, 641 So. 2d 849, 852 (Fla. 1994) (citing State v. Inciarrano, 

473 So. 2d 1272 (Fla. 1985)).

To determine whether Waite’s secretly recorded phone 

conversations with CCSO deputies constituted unlawful 
5

interception of “oral communications,” we first examine cases 

dealing with recorded conversations involving police. It has 

previously been established that there is a First Amendment right 

to record police officers conducting their official duties in public. 

See Pickett v. Copeland, 236 So. 3d 1142, 1146 n.2 (Fla. 1st DCA 

2018) (“Simply put, the First Amendment protects the act of 

photographing, filming, or otherwise recording police officers 

conducting their official duties in public.” (quoting Fields v. City of 

Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017))). Additionally, it 

has been recognized that meetings taking place in an office context 

may have “a quasi-public nature.” McDonough v. FernandezRundle, 862 F.3d 1314, 1320–21 (11th Cir. 2017) (quoting

Inciarrano, 473 So. 2d at 1274) (explaining recording fell outside 

definition of “oral communication” where party was invited to 

police chief’s office and secretly recorded conversation).

2

Here, Waite secretly recorded a telephone conversation with

Sergeant Blair. He subsequently emailed the audio recording to 

the CCSO to report what he believed to be police misconduct and 

requested an internal investigation. It was later discovered that 

Waite had similarly recorded four other conversations with CCSO 

deputies. Under these circumstances, it cannot be said that any of 

the deputies exhibited a reasonable expectation of privacy that 

society is willing to recognize.

Importantly, this is based on the record before us3 as all the 

secretly recorded conversations were between a citizen and law 

2 The Florida Constitution recognizes that “[a] public office is 

a public trust” and “[t]he people shall have the right to secure and 

sustain that trust against abuse.” Art. II, § 8, Fla. Const. Thus, 

“the Florida Constitution contemplates that public business is to 

be conducted in the ‘sunshine.’” Dep’t of Agric. & Consumer Servs. 

v. Edwards, 654 So. 2d 628, 631 (Fla. 1st DCA 1995).

3 Our decision is also based on the charges that were filed. The 

State charged Waite with unlawfully intercepting “oral 

communications” in violation of section 934.03(1)(a). See Langlois 

v. State, 49 Fla. L. Weekly D1469a (Fla. 5th DCA July 12, 2024)

(Kilbane, J., concurring) (examining differences between “wire”
6

enforcement officers regarding official business, occurred while the 

deputies were on duty, and involved phones utilized for official 

police business. Under these circumstances, and in spite of Waite’s 

concession that none of the deputies gave consent for him to record

which is also required, Waite did not violate section 934.03(1)(a)’s 

prohibition on intercepting “oral communications” when he

recorded the conversations with the deputies because they did not 

have a reasonable expectation of privacy. Cf. McDonough, 862 

F.3d at 1320 (explaining that meeting involved “public employees

acting in furtherance of their public duties,” which undermined

objective expectation of privacy); Avrich v. State, 936 So. 2d 739,

742 (Fla. 3d DCA 2006) (reversing defendant’s conviction for

making obscene or harassing telephone calls where victim did not

have reasonable expectation of privacy as required by statute).

Accordingly, the denial of the rule 3.190(c)(4) motion to 

dismiss must be reversed. Cf. Ford v. City of Boynton Beach, 323 

So. 3d 215, 220 (Fla. 4th DCA 2021) (reversing summary judgment 

based on reasonable expectation of privacy requirement for 

intercepting “oral communication” in section 934.03(1)(a) and 

section 934.02(2)).

4

B. Battery and Resisting with Violence Charges

Waite further advances that because the unlawful 

interception of “oral communication” charges must be dismissed, 

so must the charges for battery on a law enforcement officer and 

and “oral” communications and discussing prosecutorial 

discretion).

4 The State relies on State v. Sells, 582 So. 2d 1244 (Fla. 4th 

DCA 1991), for its position that whether officers have a reasonable

expectation of privacy is a question for the jury. However, Sells

addresses circumstances where one party suspects that the other 

party may be recording. Id. at 1245. That is not the issue

addressed here. “Whether the provisions of chapter 934, Florida 

Statutes, apply to the recordings at issue in this case—where the 

facts relevant to the recordings are undisputed—is a question of 

statutory interpretation.” McDade, 154 So. 3d 296–97 (emphasis 

added). 
7

resisting arrest with violence. We reject this assertion. Section 

776.051(1), Florida Statutes, “prohibits the use of force to resist 

either arrest or the execution of a legal duty by a law enforcement 

officer unless the defendant can show that the officer was not 

acting in good faith.” King v. State, 120 So. 3d 108, 109 (Fla. 4th 

DCA 2013) (per curiam) (citing A.W. v. State, 82 So. 3d 1136, 1139 

(Fla. 4th DCA 2012)); see also Tillman v. State, 934 So. 2d 1263, 

1269 (Fla. 2006), superseded by statute on other grounds, § 

776.051(1), Fla. Stat. (2008) (explaining that under section 

776.051(1) citizens do not have the “right to resist an illegal arrest 

with force”). Here, the deputies were executing an arrest warrant. 

Waite did not demonstrate that the deputies lacked good faith in 

executing the arrest warrant, and he was required to comply 

without resorting to violence.

Conclusion

Accordingly, we reverse the denial of Waite’s rule 3.190(c)(4) 

motion to dismiss the unlawful interception of “oral 

communication” charges and remand for further proceedings

consistent with this opinion. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, REMANDED with 

instructions.

EDWARDS, C.J., concurs.

MAKAR, J., concurring in result with opinion.
8

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________
Case No. 2023-1354

Lt. Case. No. 2021-CF-000253-A

MAKAR, J., concurring in result only.

The State seeks rehearing in this case, convincingly pointing 

out that Waite intercepted wire communications, not oral 

communications, a point it did not raise in initial briefing. With 

due respect to my colleagues, the path of least resistance in this 

case is to reverse on the basis that improper charges were brought 

against Waite and to leave it at that. 

The prosecution charged Waite under that portion of Florida’s 

wiretap statute that relates to oral communications, such as direct 

face-to-face verbal conversations in which speakers may have an 

expectation of privacy in their communications. The phone calls 

underlying the charges against Waite, however, were not oral 

communications, they were wire communications as the Solicitor 

General correctly points out in his rehearing motion. Under the 

facts presented, Waite could have been charged with interceptions

of wire communications; no oral communications occurred between 

Waite and the officers that were susceptible to interception.

Having charged Waite under the wrong section of the wiretap 

statute, the State ought to concede error and stipulate to dismissal 

of the interception charges against Waite on that basis; simply 

stated, because Waite did not intercept oral communications the 

charges against him are nullities. The Solicitor General urges that 

the panel certify the following question of great public importance: 

“Whether a person is liable for unlawful wiretapping under Section 

934.03 for surreptitiously recording phone conversations with lawenforcement officers.” The answer to that question is “yes,” 

provided a nonconsensual interception of a wire communication

occurred, such as the phone calls in this case. But those were not 

the charges against Waite.

In summary, the charges against Waite—that he intercepted 

oral communications—were erroneous. Because Waite is entitled 

to relief from those specific charges, I concur in the result reached; 

a discussion of the nuances of what constitutes an oral 

9
communication is unnecessary and, as the State and amicus point 

out, creates uncertainty in the law enforcement field. That said, 

this odd case is an outlier because it is unlikely that future 

prosecutors will pursue charges for interceptions of oral 

communications under Florida’s wiretap statute under the facts 

presented, i.e., the interception of a phone call, which is a wire 

communication.

10