Wednesday, September 9, 2009

Second District On Waiver Of Right To Counsel And "Warning To Supsect" Cards

In State v. Fletcher (2D08-4646), the Second District distinguished its decision two years ago in Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007) because in the Fletcher case the defendants were properly warned of their rights.  Since the Second District released its decision in Powell, the Florida Supreme Court affirmed [State v. Powell, 998 So. 2d 531 (Fla. 2008)] and the United States Supreme Court has since granted certiorari [Florida v. Powell, No. 08-1175, 2009 WL 741877 (U.S. June 22, 2009)].  The Supreme Court docket can be found here  and the SCOTUS Wike page here.

With regard to the Fletcher case, the Second District stated:
In Powell, Mr. Powell was given Miranda warnings that informed him only that he had the right to talk to a lawyer before answering any questions. State v. Powell, 998 So. 2d 531, 541 (Fla. 2008). This court and the Florida Supreme Court explained in their respective Powell decisions that such an instruction did not satisfy Miranda because it could mislead a suspect to believe that he did not have a right to the advice and counsel of an attorney during questioning. Id.
However, Mr. Fletcher and Mr. Lee signed "Warnings to Suspects" cards which state, "You have the right to the presence of an attorney." This unrestricted warning is distinguished from the one given in Powell and identical to language recently approved by this court in State v. Smith, 6 So. 3d 652, 653 (Fla. 2d DCA 2009) (holding that the statement satisfied the constitutional requirements set forth in Miranda because it did not limit the time during which the defendant could exercise his right to counsel). See also Graham v. State, 974 So. 2d 440 (Fla. 2d DCA 2007), review denied, 984 So. 2d 1250 (Fla. 2008) (same).


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