Major FL Court: Failure to Advise Suspect of Right to Counsel DURING Questioning Violates Miranda

January 14, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

In a major case, Florida’s 4th District Court of Appeal reversed a defendant’s conviction because law enforcement told him he had the right to an attorney BEFORE he answered any questions – without clarifying this right also applied WHILE he was being interrogated.

In Florida and throughout the U.S., Miranda rights are key constitutional protections for those who have been arrested and are subject to custodial interrogation. Per the U.S. Supreme Court’s Miranda v. Arizona, 384 U.S. 436 (1966), these rights include:

• The right to remain silent
• The fact that anything you say can and will be used against you in court
• The right to an attorney, including the right to have one present during questioning
• The fact that if you cannot afford an attorney, one will be provided free of charge

If someone is notified of their Miranda rights, the prudent next step is to EXERCISE THEM! Tell law enforcement you will be remaining silent and request an attorney. Say this out loud, as if you just sit there quietly without announcing you are invoking your rights, the police can legally keep questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

It is a common misconception that someone has to be read their Miranda rights any time they are questioned by law enforcement or placed in handcuffs. In reality, Miranda only kicks in when a suspect is subject to custodial interrogation (both in custody and being interrogated by police). Moore v. State, 798 So.2d 50 (Fla. 1st DCA 2001)

Per Moore v. State, custody occurs for Miranda purposes when a suspect’s freedom of movement is restrained by police in a manner that would make a reasonable person in their position feel unfree to leave. Interrogation is defined as questioning or its “functional equivalent” that is reasonably likely to elicit an incriminating response from a suspect.

To learn more about custody for Miranda purposes, click here. For more on interrogation and how courts define its “functional equivalent,” click here.

A key aspect of Miranda is the warning itself. Though a reading of someone’s Miranda rights does not have to be a “talismanic incantation” (a certain set of words said in a particular way), it must adequately convey all of the rights afforded to suspects who are subject to custodial interrogation.

If someone is not given a Miranda warning when this is required (e.g. prior to the beginning of custodial interrogation) or the warning fails to adequately apprise them of one or more rights, this invalidates any subsequent “Miranda waiver” by the suspect.

A Miranda waiver occurs when a suspect decides not to exercise their rights to remain silent and ask for an attorney – and instead, chooses to speak to law enforcement without counsel present. This is almost always a big mistake. Law enforcement officers are trained in the art of securing confessions, so make sure to ask for an attorney!

If someone does waive their Miranda rights and speaks to law enforcement, this must be done knowingly, intelligently and voluntarily. This means that they must both be aware of the nature of their rights (e.g. have a full understanding of what they are) and the potential consequences of giving them up (e.g. statements can be used against them in court).

In the event that someone’s Miranda waiver was not knowing, intelligent, and voluntary, any subsequent statements (e.g. confessions) made by the suspect during interrogation must be suppressed. This means they are inadmissible in a court of law (e.g. can’t be used against you).

There are many reasons why someone’s waiver of their rights may be found to have not been knowing, intelligent, and voluntary. These may include:

• The suspect had an extremely low IQ and could not understand the warnings
• The suspect spoke another language (not English) and was not notified of their rights in their native language, so could not understand them
• The suspect was a juvenile with no experience in the justice system
• Officers failed to adequately explain one or more of a suspect’s Miranda rights to them (e.g. the warning was “constitutionally deficient”)

One case involving a constitutionally deficient Miranda waiver is Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). There, the defendant’s conviction was reversed because he was not adequately informed of his Miranda rights by law enforcement before he confessed. Let’s take a look at Roberts and what it means for your Miranda rights in Florida.

KEY CASE: Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004)

In Roberts, the defendant (Roberts) was charged with and convicted of manslaughter following the drowning death of a 5-year-old in a local canal. On appeal to the 4th DCA, he argued that the Miranda warning he received was constitutionally inadequate, so his post-arrest statements were wrongly admitted at his trial.

Roberts was brought to the police station for questioning in the case. He was 17 years old at the time and had an IQ of 67. When he arrived at the station, he was given a written “Miranda form” that notified him of the following:

• “You have the right to remain silent.”
• “Anything you say can and will be used against you in a court of law.”
• “You have the right to talk with a lawyer and have a lawyer present before any questioning.”
• “If you cannot afford a lawyer, one will be appointed to represent you before any questioning if you wish.”

Roberts signed the Miranda form and gave an inculpatory statement to police (indicating that he was guilty of manslaughter). The tape of his statement was played for the jury at Roberts’s trial, and he was found guilty.

On appeal to Florida’s 4th DCA, Roberts contended that the third line of the Miranda form (“You have the right to talk with a lawyer and have a lawyer present before any questioning”) did not sufficiently inform him of the right to an attorney. This is because Miranda also guarantees the right to counsel during police questioning (not just before).

Because Roberts was unaware that he had the right to have a lawyer present while he was being interrogated, he asserted that his Miranda waiver was invalid (e.g. not knowing, intelligent, and voluntary). As a result, he contended that the interrogation tape should not have been played at his trial – and the fact that it was required reversal of his conviction.

Florida’s 4th District Court of Appeal agreed and reversed Roberts’s manslaughter conviction, remanding to the lower court for a new trial. The 4th DCA wrote of the Miranda form:

“Here, the BSO warning does not fail to state altogether when an attorney can be present. Rather, it explicitly states that an attorney can be present before questioning. This use of the “before questioning” warning alone, however, has suggested to at least one court that the suspect was affirmatively misled into believing that the attorney could not be present during questioning itself. See Caldwell, 954 F.2d at 504 (distinguishing United States v. Fox, 403 F.2d 97 (2d Cir. 1968)). Perhaps for this reason, courts confronting warnings with just the “before questioning” advice have deemed them constitutionally infirm. See United States v. Bland, 908 F.2d 471 (9th Cir. 1990); Noti, 731 F.2d at 615; Fox, 403 F.2d at 100 (2d Cir. 1968); Windsor, 389 F.2d at 533 (5th Cir. 1968); see also Brown v. Crosby, 249 F. Supp.2d at 1302.”

The 4th DCA ruled that because the language of the waiver could have misled Roberts to believe he did not have the right to an attorney during questioning, his post-arrest statements should not have been used against him at trial:

“We agree with the defendant that the Miranda warnings given to him were inadequate in failing to inform him that he had a right to have counsel present during interrogation. This inadequacy militated against a finding that the defendant knowingly and intelligently waived his Miranda rights. See Brown, 249 F. Supp.2d at 1291 (discussing that a waiver of Miranda rights is “knowingly and intelligently” made only if the defendant has a full awareness of the nature of the right being abandoned and the consequences of his decision to abandon it).”

Since the 4th DCA found the introduction of Roberts’s statements was not “harmless error” (e.g. did not impact the jury’s verdict), it reversed his conviction:

“Further, we are unable to conclude that this error was harmless beyond a reasonable doubt, given that the bulk of the evidence against defendant was provided by two young witnesses whose credibility was sharply contested at trial. Accordingly, we reverse defendant’s conviction and sentence and remand this cause for a new trial.”

In sum, Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004) marks a defendant-friendly development in Florida’s corpus of case law surrounding Miranda rights and the validity (or invalidity) of Miranda waivers. The 4th DCA found:

• The Miranda warning Roberts received told him he had the right to a lawyer before police questioning – not during police questioning
• Per Miranda v. Arizona, 384 U.S. 436 (1966), the right to counsel is guaranteed during interrogation itself
• Because Roberts was effectively “misled” by the form, his Miranda waiver was not knowing, intelligent and voluntary
• This meant that the use of his inculpatory statements against him at trial (e.g. playing the tape for the jury) was legal error
• Because the error was not proven to have been “harmless” beyond a reasonable doubt, Roberts’s manslaughter conviction required reversal

Florida’s criminal defense community should take note of Roberts, as it makes clear a suspect must be aware they have the right to a lawyer during interrogation (not just before). Otherwise, a Miranda waiver is constitutionally deficient – requiring suppression of statements (including confessions) made during an ensuing interrogation.

If someone is arrested and formally charged in Florida in a case involving a Miranda waiver that was not knowing, intelligent, or voluntary, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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