JACK CUTTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Cutter appeals his conviction for possession of burglary tools, challenging whether the trial court properly established a waiver of his right to testify. The court affirms, holding that a defendant waives his right to testify if he acquiesces in his attorney's advice not to testify without objecting on the record.
The trial court is not required to personally question a defendant on the record about waiving his right to testify. A defendant waives his right to testify by acquiescing in his attorney's advice not to testify. However, if the defendant disagrees with his attorney's recommendation, he must make his objection known to the court during trial.
[1] A criminal defendant waives the right to testify if, after counsel advises against testifying, the defendant acquiesces in that advice and does not express disapproval on…
[2] A defendant who disagrees with counsel's advice not to testify must raise the objection on the record at trial to preserve the right to testify.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The right to testify is not so fundamental and personal that it can only be waived by the defendant; it may be waived by the defendant's attorney in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.”
Establishes that the right to testify differs from other constitutional rights and can be waived by counsel without explicit on-the-record waiver by the defendant.
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Join FLexlaw to unlock all legal intelligenceCutter was charged with possession of burglary tools and petit theft. He presented a witness on his behalf but did not testify himself. The jury found…
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SCHOONOVER, Judge.
Appellant, Jack Cutter, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of possession of burglary tools. We affirm.
Appellant was charged with possession of burglary tools and petit theft. He presented a witness on his behalf at trial, but did not testify himself. The jury found him guilty of possession of burglary tools and not guilty of petit theft. After appellant was adjudicated and sentenced to five years in state prison, he filed a timely notice of appeal.
The sole issue on appeal is whether the trial court must establish on the record that a criminal defendant has validly waived his right to testify.
The record before us does not indicate that appellant was personally questioned by the trial court concerning his decision not to testify. It does indicate, however, that neither the appellant nor his attorney objected when the jury was instructed concerning appellant’s election not to be a witness in the case.
Appellant does not contend that his attorney failed to advise him of his right to testify. Relying on People v. Curtis, 681 P. 2d 504 (Colo.1984), he contends that the trial court failed to establish in open court on the record that he voluntarily, knowingly, and intelligently waived his right to testify. Appellee, the State of Florida, relying on State v. Albright, 96 Wis.2d 122, 291 N.W. 2d 487 (1980), cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980), asserts that an accused who disagrees with his attorney’s advice not to testify must raise his objection on the record at trial. If the accused does not attempt to take the stand, he waives his right to testify. We agree with appellee’s assertion and, accordingly, with the holding of the Supreme Court of Wisconsin in State v. Albright.
The right to testify in criminal prosecutions is a mandatory, organic rule of procedure and a long-accepted constitutional principle. Hall v. Oakley, 409 So. 2d 93 (Fla. 1st DCA 1982); Art. I, § 16, Fla. Const.; see also, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Ives, 504 F. 2d 935 (9th Cir.1974); Moore v. State, 276 So. 2d 504 (Fla. 4th DCA 1973). Unlike the right to forego assistance of counsel and certain other rights, however, the right to testify is not so fundamental and personal that it can only be waived by the defendant; it may be waived by the defendant’s attorney in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings. State v. Albright.
We, accordingly, hold that an accused waives his right to testify, if, after having the right explained to him by counsel, he acquiesces in his attorney’s advice not to testify. If he does not agree with his attorney, he must make his objection known to the court during trial, not as an afterthought. If he properly objects, the court must allow him to testify. State v. Albright; People v. Knox, 588 Ill.App.3d 761, 16 Ill.Dec. 182, 374 N.E. 2d 957 (1978); contra People v. Curtis, 681 P. 2d 504 (Colo.1984).
AFFIRMED.
BOARDMAN, A.C.J., and LEHAN, J., concur.
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Citator
Cited By (12 total)
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Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)…wing and intentional, and the existence of effective waiver should be ascertained by the trial court on the record.” 681 P. 2d at 515. The state urges this Court to adopt the position taken by the Second District Court of Appeal in Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984). When confronted with this issue, the Second District Court in Cutter rejected the position taken by the Colorado Supreme Court in Curtis instead opting for the approach taken by the Wisconsin Supreme Court in State v. Albright, 9…
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Davis v. State, 875 So. 2d 359 (Fla. 2003)…een considered so fundamental as to require the same procedural safeguards employed to ensure that a waiver of the right to counsel is knowingly and intelligently made. Id. at 410-11. In Torres-Arboledo, the Court relied in part on Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984), where the Second District stated that the right to testify may be waived by the defendant’s attorney “in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.” Cutter, 460 So.…
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Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)…testify at trial. Affirmed in part, reversed in part, and remanded with instructions. PATTERSON and PARKER, JJ., concur. PARKER, J., also concurs specially in a separate opinion. SCHOONOVER, A.C.J., concurs in result only. . In Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984), we dealt with virtually this same issue and rejected an argument that the error was fundamental. In so doing we adopted the holding in State v. Albright, 96 Wis.2d 122, 291 N.W. 2d 487, cert. denied, 449 U.S. 957, 101 S.Ct. 367,…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- United States v. Ives, 504 F.2d 935 (9th Cir. 1974)
- Hall v. The Honorable Thomas D. Oakley, 409 So. 2d 93 (Fla. 1st DCA 1982)
- Thompson v. United States, 449 U.S. 957 (U.S. 1980)
- Green v. New York, 449 U.S. 957 (U.S. 1980)
- Moore v. State, 276 So. 2d 504 (Fla. 4th DCA 1973)