Major Florida Court: “Right to Presence of Attorney” Satisfies Miranda Warning Requirements

October 23, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

A major Florida court ruled that a Miranda warning informing someone they have “the right to the presence of an attorney” – without additional information on when that right kicks in – is legally adequate. 

In Florida and throughout the U.S., a suspect must be read their Miranda rights before they are subject to custodial interrogation. Per the U.S. Supreme Court’s landmark decision in Miranda v. Arizona, 384 U.S. 436 (1966), these include:

• The right to remain silent
• The fact that anything they say can and will be used against them in a court of law
• The right to have an attorney present (including during questioning)
• The fact that if they cannot afford an attorney, one will be provided for them

For Miranda purposes, custody is defined as when a reasonable person in the suspect’s position would not feel free to end police questioning and leave. Interrogation occurs when police engage in behavior that is reasonably likely to elicit an incriminating response from a suspect, whether it is actual questioning or its “functional equivalent.”

To learn more about what constitutes custodial interrogation under Florida law, requiring the reading of Miranda rights, click here.

If someone agrees to speak with law enforcement without an attorney present after being read their rights, they must do so knowingly, intelligently, and voluntarily. In essence, someone must understand their rights and the potential consequences of not exercising them before custodial interrogation can begin (Miranda).

When a person is read their Miranda rights, the smartest thing to do is exercise them! Tell the police that you’re invoking the right to remain silent and ask for an attorney. Say this out loud, as if you sit there silently, law enforcement can legally use your silence as permission to continue questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

Sometimes, a defendant may file a motion before or during trial to suppress their post-Miranda statements. In other words, they will tell the court that because they did not validly waive their Miranda rights before speaking to the police (didn’t understand them, were misled, etc.), their post-arrest statements should not be used against them at trial.

If a trial judge finds by a preponderance (majority) of the evidence that someone’s waiver was not knowing, intelligent, and voluntary, the proper remedy is preventing the statements from being admitted in court. This could be a game-changer in a criminal case, as the jury will not hear potentially incriminating statements (e.g. a confession) from the defendant.

Factors courts use to evaluate whether a Miranda waiver was knowing, intelligent, and voluntary may include:

• The defendant’s age, intelligence, background, and experience with the justice system (or lack thereof) 
• Whether the defendant was read Miranda in their native language
• The presence (or absence) of a signed Miranda form
• Whether officers “minimized” the rights (e.g. read them very quickly or referred to them as a “formality,” etc.)
• Whether the Miranda warning adequately advised the defendant of their rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)

Though Miranda was clear that officers do not need to read a script when apprising someone of their rights, some Miranda warnings have been found to be legally inadequate. If a warning fails to mention a Miranda right altogether or omits key aspects of one or more rights, a waiver is not considered to have been knowing, intelligent, and voluntary.

Occasionally, a defendant will challenge the use of their post-arrest statements in court on such grounds. One Florida case from the 2nd District Court of Appeal (Greater Tampa area) provides an intriguing “edge case” regarding the required content of Miranda warnings. Let’s break it down.

KEY CASE: McCree v. State, 982 So. 2d 1278 (Fla. 2d. DCA 2008)

In McCree, the defendant (McCree) was charged with robbery and attempted felony murder with a firearm. He ultimately pled no contest to these offenses and received a 15-year prison sentence.

Despite taking the plea, McCree appealed his sentence by arguing that he received ineffective assistance of counsel. McCree noted that when he was arrested and questioned regarding the offenses, he was read the following Miranda warning by Lakeland Police Department officers: 

1) You have the right to remain silent.

2) Anything you say can and will be used against you in a court of law.

3) You have the right to the presence of an attorney.

4) If you cannot afford an attorney, one will be appointed for you prior to any questioning.

I UNDERSTAND MY RIGHTS.

McCree compared this relatively concise Miranda form to forms of surrounding departments, which were much more thorough. He argued that while he was informed of the “right to the presence of an attorney,” this provision of the form did not specify when this right took effect. 

McCree said this constituted a legally inadequate Miranda warning, entitling him to renege on his plea and file a pretrial motion to suppress his confession to the offenses on these grounds with a new lawyer. But the 2nd DCA disagreed and affirmed the plea. 

The court held that McCree’s attorney was not ineffective because the Miranda form was legally adequate. The 2nd DCA explained:

“In Roberts, the Fourth District held that a form which contained the phrase ‘before any questioning’ was required to further explain that the right would continue at all times during the questioning. Because the Lakeland form does not contain the language restricting the right to ‘before any questioning,’ it is not deficient under the holding in Roberts…”

“Because the form is not deficient, neither the trial court nor this court has any need to determine whether a lawyer could be deemed to be ineffective in the relevant period for failing to raise this issue by filing a motion to suppress.”

The 2nd DCA distinguished McCree’s case from a 4th District Court of Appeal case, Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). There, the court found the Miranda warning Roberts received did not sufficiently apprise him of his rights, as it only specified he had a right to a lawyer before (not during) questioning.

But this was not the case in McCree, because the form did not restrict the right to the “presence of an attorney” to a particular period of time. As a result, the court reasoned this statement was just “shorthand” for telling McCree that he had the right to an attorney at all times – including during interrogation.

McCree has been lauded by advocates and judges who embrace a more restrictive reading of Miranda v. Arizona, 384 U.S. 436 (1966). Supporters of the decision argue that someone must simply be told they have the right to an attorney (U.S. Constitution’s Sixth Amendment) and nothing more.

However, critics of McCree are likely to assert that the failure to specify when the right to the “presence of an attorney” applies violates Miranda. As McCree himself argued, identification of the right to counsel without offering additional information as to when this applies may leave a suspect confused as to when a lawyer can be summoned.

In sum, McCree v. State, 982 So. 2d 1278 (Fla. 2d. DCA 2008) is a significant decision in Florida’s corpus of Miranda case law. The 2nd DCA held that informing a suspect that they have “the right to the presence of an attorney” sufficiently advises them of their Sixth Amendment right to counsel. No additional context is required.

Though Miranda warnings often include more detail than this (specifying that the right applies before and during police questioning), this is not a constitutional requirement, as McCree notes. This is why it is important to UNDERSTAND your Miranda rights and how to exercise them before stepping foot in an interrogation room.

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 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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