JOSETTE OCTAVE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that statements made while in custody without proper Miranda warnings must be suppressed, but voluntary statements made outside of custody are admissible.
The defendant made statements to law enforcement on two separate occasions. The trial court denied a motion to suppress both sets of statements.…
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LAWSON, J.
Josette Octave timely appeals her conviction for aggravated manslaughter of a child, challenging the trial court’s denial of a motion to suppress her statements to law enforcement. We affirm in part, and reverse in part.
Octave’s motion to suppress dealt with statements that she made on two separate occasions. With respect to the first set of statements, we affirm the trial court’s ruling. Because Octave was not in custody at the time she made these voluntary statements, no Miranda1 warnings were necessary. Therefore, the motion alleging a violation of Octave’s rights under Miranda was properly denied.
With respect to the second set of statements, Octave was in custody and Miranda warnings were required. Although law enforcement did apprise Octave of most of her rights prior to questioning, the officers only explained to her that she had a right to counsel, generally, and never said anything that could fairly be understood as apprising Octave of her right to have a lawyer present during questioning. Therefore, reversal is clearly required. See Maxwell v. State, 917 So. 2d 404 (Fla. 5th DCA 2006).
We would note that Maxwell was released well after the trial court’s ruling in this case. In addition, no case directly on point was supplied to the trial judge. We are confident that if given the opportunity to review the facts of this case in light of Maxwell, the trial judge would have reached the same conclusion that we reach — Maxwell controls and requires suppression of Octave’s second set of statements to law enforcement.
AFFIRMED IN PART AND REVERSED IN PART.
THOMPSON and SAWAYA, JJ., concur. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Citator
Cited By
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State v. Powell, 998 So. 2d 531 (Fla. 2008)…uspect be informed that he has the right to an attorney before and during questioning. See Franklin, 876 So. 2d at 608.8 The Fifth District also addressed a similar issue in Maxwell v. State, 917 So. 2d 404 (Fla. 5th DCA 2006), and Octave v. State, 925 So. 2d 1128 (Fla. 5th DCA 2006). In Maxwell, the police officer failed to advise the defendant that “he had a fight to have an attorney present during questioning and that an attorney would be appointed to represent him if he could not afford one.” 917 So. 2d a…
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M.A.B. v. State, 957 So. 2d 1219 (Fla. 2d DCA 2007)…s it apart from Lamia and similar cases. Nonetheless, Maxwell appears to hold that the failure to expressly inform the defendant of the right to the presence of counsel during questioning in itself rendered the warnings invalid. In Octave v. State, 925 So. 2d 1128 (Fla. 5th DCA 2006), the court identified the sole deficiency in the warnings as the failure to advise of the right to the presence of a lawyer during questioning. The court stated that “the officers only explained to [the defendant] that she had a…1 / 2
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State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2008)…4 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The written waiver form included a provision advising the suspect “[Y]ou are entitled to talk to an attorney now and have him present now or at any time during questioning.” . In Octave v. State, 925 So. 2d 1128 (Fla. 5th DCA 2006), we cited to Maxwell for the proposition that advising a suspect generally of the right to counsel is insufficient to apprise the suspect of the right to have a lawyer present during questioning. Accordingly, to the extent Octave…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Maxwell v. State, 917 So. 2d 404 (Fla. 5th DCA 2006)