Opinion
Case No. 4D03-2915.
Opinion filed June 1, 2005.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Susan Lebow, Judge, L.T. Case No. 02-8494 CF10A.
Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Orlando Canete, was convicted and sentenced on two counts of third-degree murder and one count of aggravated assault. Appellant challenges the trial court's denial of his motion to suppress incriminating statements given to the police. Because the Miranda warnings appellant received were inadequate to fully inform him of his constitutional right to have an attorney present during questioning, and the admission of the statements obtained was not harmless, we reverse.
Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant was arrested following an incident where it is alleged that he intentionally drove his pick-up truck toward his cousin, the intended victim, but, instead, struck and killed his uncle. Thereafter, appellant was taken to the police station, where officers advised him of his rights, in Spanish, which have been translated as follows:
Officer: Before I ask you any questions I want to advise you what are your rights about the law. You understand that I am a police officer.
Canete: Yes.
Officer: You have the right to remain silent. That means that you don't have to speak or answer any of my questions if you don't want to, do you understand?
Canete: Yes.
Officer: You have the right to speak to an attorney, have an attorney present here before we make any questions, do you understand?
Canete: Yes.
Officer: If you cannot employ an attorney, your own attorney and you are not an attorney, one will be appointed before we can make you — ask you any questions, do you understand?
Canete: Yes.
Officer: If you decide to answer the questions now, without an attorney present, you still have the right not to answer my questions at any time until you can speak with an attorney, do you understand?
Canete: Yes.
Officer: Knowing and understanding your rights as I have explained to you, are you agreeable to answer my questions without an attorney present?
Canete: Yes.
Officer: When you talk to me anything you answer to my questions can be presented as evidence in a court against you, do you understand?
Canete: Yes.
Without requesting an attorney and without asking any questions, appellant signed a waiver form and the interview continued. Appellant filed a motion to suppress the statements made during the interview, arguing that the officers failed to advise him of his right to have an attorney present during questioning. The trial court denied the motion.
Miranda v. Arizona, 384 U.S. 436 (1966), makes it clear that suspects must be informed of their right to have an attorney present before and during questioning. See Franklin v. State, 876 So. 2d 607 (Fla. 4th DCA 2004), cert. denied, 125 S. Ct. 890 (2005); West v. State, 876 So. 2d 614 (Fla. 4th DCA 2004), review denied, 892 So. 2d 1014 (Fla. 2005); Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004), review denied sub nom. State v. West, 892 So. 2d 1014 (Fla. 2005). The issue, here, is whether appellant could readily infer from what he was told that he had the right to have an attorney present during questioning since he was not expressly given that advice. We conclude that he could not.
Although no magic words are required for Miranda, see Gore v. State, 599 So. 2d 978 (Fla. 1992), here, the warnings simply failed to convey the significant right to counsel's presence during the questioning process. It is true, as the dissent points out, that appellant was told by the officers that he had the right to the presence of an attorney before they could ask any questions and that if he decided to answer questions without an attorney present, he had the right not to answer any question until he could speak with an attorney. Yet, this information never effectively and expressly conveyed to appellant that he had the right to have an attorney present and by his side while the actual questioning was taking place, i.e., "during" questioning. A criminal defendant need not have to guess at the substance of his constitutional rights under Miranda. As this court stated in Roberts:
Miranda requires a clear, understandable warning from law enforcement officers that conveys all of a defendant's rights. "Only through such a warning is there ascertainable assurance that the accused was aware of this right."
874 So. 2d at 1229 (quoting Miranda, 384 U.S. at 471-72).
We conclude that the officer failed to advise appellant of his right to have counsel present during questioning and the erroneous admission of appellant's statement was harmful error. We therefore vacate the judgment and sentence and remand with direction that appellant's statement be suppressed. As to the other issue raised on appeal, we find no reversible error or abuse of discretion.
GUNTHER, J., concurs.
STONE, J., dissents with opinion.
I would affirm. This case is distinguishable from the circumstances in West and Roberts. Although the officers did not use the word "during" or "while" in warning Appellant, they did tell him "if you decide to answer the questions now without an attorney present you still have the right not to answer my questions at any time until you can speak with an attorney." They told him that he had the right to the presence of an attorney before they could ask him any questions, and they further asked Appellant if he was willing to answer questions without an attorney present. In my judgment, such language is the functional equivalent of the statements required by Miranda. I would hold that the totality of this colloquy conveys that the suspect had a right to have an attorney present during interrogation.
A verbatim wording of Miranda is not required, and Miranda warnings need not be given in the exact form described in Miranda. Roberts, 874 So. 2d at 1225; C.A.M. v. State, 819 So. 2d 802, 804 (Fla. 4th DCA 2001). Rather, the question is whether the warning adequately fulfills Miranda's substantive requirements. Roberts, 874 So. 2d at 1227 (citing Duckworth v. Eagan, 492 U.S. 195 (1989)). I would conclude that it does.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.