STATE OF FLORIDA, APPELLANT,
v.
DARRYL M. SMITH, APPELLEE
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The State appealed a suppression order granted by the trial court based on a deficient Miranda warning. The appellate court reversed, holding that Smith's Miranda warning, which explicitly stated his right to "the presence of an attorney," was constitutionally adequate and distinguishable from the deficient warning in Powell v. State.
Smith's Miranda warning was constitutionally adequate. The warning that he had "the right to the presence of an attorney" clearly conveyed his right to counsel during questioning without any limiting timeframe, making it distinguishable from the deficient warning in Powell.
[1] A Miranda warning is constitutionally deficient if it fails to convey a suspect's right to the presence of an attorney during questioning.
[2] A Miranda warning stating a suspect has the right to talk to a lawyer before answering questions is misleading if it does not also inform the suspect that an attorney can…
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Join FLexlaw to unlock all legal intelligence“The 'before questioning' warning suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.”
Explains why the Powell warning was deficient—it failed to convey the right to counsel during interrogation
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Join FLexlaw to unlock all legal intelligenceDarryl Smith was arrested and given a Miranda warning that included the statement: "You have the right to the presence of an attorney." The circuit co…
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The circuit court granted Darryl Smith’s motion to suppress in reliance on this court’s decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). However, the Miranda warning given in this case materially differed from the warning at issue in Powell. Therefore, we reverse.
As explained by this court and the Florida Supreme Court in their respective Powell decisions, the Miranda warning given to Kevin Powell was constitutionally deficient because it did not convey his right to the presence of an attorney during questioning. Rather, Powell was told that he had the right to talk to a lawyer before answering questions. 998 So.2d at 541. This instruction was misleading because “[t]he ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” Id. at 541. Although Powell was also told that he could use his rights during the interview, this portion of the warning “could not cure the deficiency because Powell was never unequivocally informed that he had the right to have an attorney present at all times during his custodial interrogation.” Id. at 541.
In this case, however, Smith was told: “You have the right to the presence of an attorney.” Nothing Smith was told suggested that his right to the presence of an attorney was limited to the period “before questioning.” Therefore, this case is distinguishable from Powell and more akin to Graham v. State, 974 So.2d 440 (Fla. 2d DCA 2007), review denied, 984 So.2d 1250 (Fla.2008), which distinguished Powell because the warning given to Wilson Graham advised “that Graham had the right to the presence of an attorney and did not include any timeframe limitation.” 974 So.2d at 440. In fact, the supreme court cited Graham and noted this distinction in Powell, 998 So.2d at 541. Accordingly, we reverse the order granting the motion to suppress.
Reversed and remanded.
SILBERMAN and LaROSE, JJ., Concur.
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Citator
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State v. Conisha A. Cadore and Brent Lamar Starks, 10 So. 3d 646 (Fla. 2d DCA 2009)…PER CURIAM. Reversed and remanded. See State v. Smith, 6 So. 3d 652 (Fla. 2d DCA 2009); [*647] Graham v. State, 974 So. 2d 440 (Fla. 2d DCA 2007), review denied, 984 So. 2d 1250 (Fla.2008). WHATLEY and VILLANTI, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.…
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State v. Fletcher, 16 So. 3d 1040 (Fla. 2d DCA 2009)…igned “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. 2…
Authorities Cited
- State v. Powell, 998 So. 2d 531 (Fla. 2008)
- Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007)
- Casey v. State, 984 So. 2d 1250 (Fla. 2008)
- Graham v. State, 974 So. 2d 440 (Fla. 2d DCA 2007)