RONNIE CREAMER, MELISSA SIMS AND EDWIN GLASS, PETITIONERS,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioners sought review of a circuit court order requiring them to answer questions from the state attorney without their attorney present. The Florida appellate court held that while witnesses have no constitutional right to counsel during state attorney questioning, an attorney may be present during such questioning so long as the attorney does not interfere with the investigation, and therefore the trial court erred in barring counsel absent evidence of disruption.
The court held that while witnesses have no statutory or constitutional right to counsel during state attorney questioning and therefore cannot refuse to appear or answer based on counsel's unavailability, an attorney may be present during questioning as long as the attorney does not interfere with the investigation. The trial court erred in barring petitioners' counsel absent evidence that counsel was disrupting the investigation.
[1] A witness subpoenaed for questioning by the state attorney pursuant to § 27.04, Florida Statutes, may not refuse to answer or appear solely because their attorney is not…
[2] An attorney may be present during questioning by the state attorney pursuant to § 27.04, Florida Statutes, provided the attorney does not interfere with the course of the…
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Join FLexlaw to unlock all legal intelligence“there is no statutory or constitutional right to assistance of an attorney when one is questioned pursuant to the state attorney's investigatory powers and therefore a witness who is so called may not refuse to answer or appear because his attorney is not available”
Establishes that witnesses have no right to refuse questioning based on counsel's unavailability
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Join FLexlaw to unlock all legal intelligenceOn December 1, 1983, Myrtle Creamer was arrested and later released without charges. On January 16, 1984, her husband, daughter, and daughter's boyfri…
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WENTWORTH, Judge.
This is a petition for writ of common law certiorari seeking review of a circuit court order requiring the petitioners to appear without their attorney before the state attorney to answer questions pursuant to § 27.04, Florida Statutes. For the following reasons, the petition is granted and the order below is quashed.
On December 1, 1983, Myrtle Creamer was arrested by a Bay County police officer and later released from custody without any charge having been filed against her.
On January 16, 1984, her husband, daughter, and daughter’s boyfriend [petitioners] were subpoenaed by an assistant state attorney to appear in his office for questioning pursuant to § 27.04. When petitioners appeared as requested, they were accompanied by an attorney, Graham Clarke. The witnesses were called into the state attorney’s office separately and each went in with Mr. Clarke. In response to questions by the state attorney, each informed him that Mr. Clarke’s services had been retained for the purposes of the interview and that if Mr. Clarke was evicted from the office the witness would leave too.1 Each time, the state attorney ordered Mr. Clarke to leave the office, and each time the witness left with him.
On January 23, 1984, the state attorney instituted the proceedings which resulted in the order of which petitioners now seek review. That order commands petitioners to appear without their attorney and expressly states that “their attorney shall not be allowed in the office of the State Attorney during the questioning pursuant to Florida Statutes 27.04.” Because we find that part of the order barring petitioners’ counsel from the office is not in compliance with the essential requirements of law, we grant the writ and quash the order. We recognize that there is no statutory or constitutional right to assistance of an attorney when one is questioned pursuant to the state attorney’s investigatory powers and therefore a witness who is so called may not refuse to answer or appear because his attorney is not available. Gordon v. Gerstein, 189 So. 2d 873 (Fla.1966).
However, an attorney may be present during the questioning so long as he does not interfere with the course of the investigation. Id.
Thus, the trial court erred in barring petitioners’ attorney from the questioning in the absence of evidence that he was disrupting the investigation.
The petition for writ of common law certiorari is granted, and the order of the circuit court is hereby quashed.
MILLS and BARFIELD, JJ., concur. . Incidentally, Mr. Clarke at one point answered yes when asked whether he had been retained to represent Myrtle Creamer in connection with her arrest.
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Citator
Cited By
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Munsell v. Bludworth, 474 So. 2d 1286 (Fla. 4th DCA 1985)…So. 2d 552, 553 (Fla. 2d DCA 1975). Moreover, an investigation may be held, and the subpoena powers of section 27.04 may be used, even when the target of the investigation has not been named in an indictment or an information. See Creamer v. State, 447 So. 2d 978, 978 (Fla. 1st DCA), review denied, 453 So. 2d 45 (Fla.1984); State v. Barreiro, 432 So. 2d 138, 139 (Fla. 3d DCA), review denied, 441 So. 2d 631 (Fla.1983); Able Builders, 368 So. 2d at 1341. Cf. Ezell v. Smith, 446 So. 2d 253 (Fla. 5th DCA 1984).…
Authorities Cited
- Herschel Gordon v. Gerstein, 189 So. 2d 873 (Fla. 1966)