JOSEPH MODESTE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a Fifth District Court of Appeal decision regarding Miranda warnings and whether the failure to expressly advise a suspect of the right to have counsel present during questioning vitiates otherwise adequate Miranda warnings. The Court exercised jurisdiction based on a certified conflict with other district courts and applied its recent Powell decision to resolve the issue.
Both Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning. The Fifth District Court's conclusion that the subject Miranda warnings adequately advised of this right was incorrect.
[1] Miranda warnings must clearly inform a suspect of the right to have a lawyer present during questioning.
[2] Failure to expressly advise a suspect of the right to counsel's presence during questioning can vitiate otherwise valid Miranda warnings.
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Join FLexlaw to unlock all legal intelligence“Both Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning.”
The Court's holding establishing the constitutional requirement for express advice of counsel presence during interrogation.
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Join FLexlaw to unlock all legal intelligenceJoseph Modeste was subjected to police interrogation. The Miranda warnings provided to him advised of the right to talk to a lawyer before questioning…
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We have for review State v. Modeste, 987 So.2d 787 (Fla. 5th DCA 2008) (en banc), in which the Fifth District Court of Appeal certified conflict with the Fourth District Court of Appeal’s decisions in West v. State, 876 So.2d 614 (Fla. 4th DCA 2004), and Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), in holding that the subject Miranda * warnings adequately ad*1218vised of the right to have counsel present during interrogation. In so holding, the Fifth District Court further recognized that its conclusion on this issue may be in conflict with the Second District Court of Appeal’s decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). At the time the Fifth District Court issued its decision in Modeste, Powell was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).
In Powell, we addressed the following question certified by the Second District Court to be of great public'importance:
DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?
State v. Powell, 998 So.2d 531, 532 (Fla.2008) (footnote omitted). We answered the question in the affirmative and approved the Second District Court’s underlying Powell decision, holding that “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning.” Powell, 998 So.2d at 542. We thus issued an order directing respondent in the present case to show cause why we should not exercise jurisdiction, quash the Fifth District Court’s Modeste decision, and remand for reconsideration in light of our decision in Powell. Respondent in its response “agrees that this case should be remanded to the Fifth District Court of Appeal for additional consideration,” and petitioner in his reply accordingly “requests that the decision of the District Court be quashed re [sic] the authority of [Powell].”
We have therefore determined to exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fifth District Court for reconsideration upon application of this Court’s decision in Powell. Petitioner’s petition to lift stay is accordingly denied as moot, as are respondent’s motion to file amended jurisdictional brief and motion to accept as timely filed.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, POLSTON, and LABARGA, JJ., concur.
CANADY, J., dissents.
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Citator
Cited By
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Acevedo v. State, 22 So. 3d 703 (Fla. 5th DCA 2009)…551 (2009), the Miranda warning he was given was defective because he was told only that he had a right to counsel, not that he had a right to counsel before being interrogated and during interrogation. 998 So. 2d at 535; see also Modeste v. State, 4 So. 3d 1217 (Fla.2009) (quashing decision of this Court in State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2008) (en banc)).2 In an amended three-count information, the State charged Acevedo with burglary of a dwelling, dealing in stolen property, and grand the…
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State v. Modeste, 66 So. 3d 386 (Fla. 5th DCA 2011)…spect that right to counsel included the right to have counsel present dur [*387] ing interrogation). Our decision was quashed by the Florida Supreme Court in light of its decision in State v. Powell, 998 So. 2d 581 (Fla.2008). See Modeste v. State, 4 So. 3d 1217 (Fla.2009). When the United States Supreme Court accepted review of the Florida Supreme Court’s decision in Powell, this court entered an order holding the instant case in abeyance pending disposition of Florida v. Powell in the United States Suprem…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Jollie v. State, 405 So. 2d 418 (Fla. 1981)
- Gorman Roberts, Jr. v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004)
- State v. Powell, 998 So. 2d 531 (Fla. 2008)
- Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007)
- Nneka West v. State, 876 So. 2d 614 (Fla. 4th DCA 2004)
- State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2008)