Major Florida Court Rules Defendants Must Renew Pretrial Objections to Admission of Post-Miranda Statements At Trial

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

A top Florida court recently ruled that even when a defendant’s pretrial motion to suppress their post-Miranda statements is denied, they must renew their objection to the admission of those statements at trial to preserve this issue for appeal.

In Florida, someone must be informed of their Miranda rights (pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)) before they are subject to custodial interrogation by law enforcement.

Police must notify someone of:

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

Someone is considered in custody when a reasonable person in their position would not feel free to end questioning and leave. Interrogation occurs when law enforcement engages in questioning (or its functional equivalent) that is reasonably likely to elicit an incriminating response from a suspect. For more on when someone must be read their Miranda rights, click here.

If someone is read their Miranda rights, the smart decision is to exercise them! Tell officers that you will be remaining silent and request an attorney. Actually say this out loud, because if you simply stay quiet without formally exercising your rights, the police can continue questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

For someone’s post-Miranda statements to be used against them at trial (e.g. a confession to law enforcement after an arrest), their Miranda waiver must be knowing, intelligent, and voluntary. In essence, someone must understand their Miranda rights and the potential consequences of giving them up if they agree to speak without an attorney present.

If someone did not validly waive their Miranda rights (e.g. due to threats, coercion, trickery, or lack of understanding), their statements may not be used against them by the prosecution. The question of whether a defendant waived their Miranda rights knowingly, intelligently, and voluntarily is often raised in a pretrial motion from the defense.

When a defendant argues that their Miranda waiver was not knowing, intelligent, and voluntary, the State must prove by a preponderance (majority) of the evidence that it was. Courts consider factors such as the defendant’s intelligence, background, experience (or lack thereof) with the justice system, whether a written waiver was obtained (signed form), and more.

Sometimes, a court will grant a motion to suppress a defendant’s post-Miranda statements – which can significantly weaken the State’s case. But courts will also occasionally deny pretrial motions to suppress a defendant’s post-Miranda statements – finding that because they validly waived their rights, the defendant’s statements can be used against them at trial.

If the trial judge finds that a defendant’s post-arrest statements are admissible in court, it is easy to see this as a decision that is unlikely to change. As a result, some defense attorneys may waive their objection to the use of these statements at trial by saying “no objection” before the State rolls the tape.

However, this is a mistake. If the judge erred (messed up) by denying the pretrial motion to suppress and admitting a defendant’s post-Miranda statements, it is crucial to RENEW this objection at the defendant’s actual trial – even though it seems unnecessary because the judge’s mind is unlikely to change. A major new Florida court ruling explains why.

KEY NEW CASE: Xolo v. State, 396 So. 3d 416 (Fla. 6th DCA 2024)

In Xolo, the defendant (Xolo) was convicted of second-degree murder and child abuse. When he was arrested, Xolo was interrogated by law enforcement and allegedly “forced to confess.” 

Xolo alleged that officers slammed him on the ground and demanded he confess before reading his Miranda warnings, then made false promises to elicit incriminating statements from him. He also stated that he could not understand the Spanish translator when he supposedly confessed.

Based on this, Xolo filed a motion to suppress his post-Miranda confession, arguing that he did not knowingly, intelligently and voluntarily waive his rights. However, the court (judge) denied Xolo’s motion, finding a lack of evidence that officers had done what he claimed. As a result, his statements were used against him at trial.

At trial, a video of Xolo’s statements to officers was about to be played to the jury when the judge asked if Xolo objected. Noting that the trial court had previously found the statements admissible, the attorney declined to object (“no objection”). The tape was played, significantly undermining Xolo’s trial testimony – and he was convicted.

On appeal, Xolo argued that the trial court had erroneously (wrongly) admitted his post-Miranda statements. The State countered that even if this was the case, Xolo had waived this claim on appeal because he did not renew his objection to their admission at trial – despite filing a pretrial motion to suppress.

Florida’s 6th District Court of Appeal agreed with the State, affirming Xolo’s convictions. The 6th DCA held that by failing to renew his objection to the State’s use of the statements at the trial itself (rather than simply doing so in a pretrial motion), the claim was left unpreserved for appeal. Rejecting Xolo’s argument, the 6th DCA wrote:

“Since the court denied the motion to suppress Xolo’s confession, the argument goes, it definitively ruled that the confession was admissible, and Xolo did not have to renew his objection at trial. So even though his defense counsel did not object when the State offered the confession at trial, Xolo says, he can still challenge its admission. Not so.”

The 6th DCA reasoned that a Florida Supreme Court case (Carr) was binding precedent on this issue. In that case, Carr was charged with first-degree murder and challenged the admission of a relevant record (document) before trial. The court denied Carr’s pretrial motion to exclude (not admit) the record. 

When Carr was asked at trial if she objected to the admission of the record, she said that she did not (due to the judge’s previous ruling), like Xolo. Analogizing Carr to the case at bar, the 6th DCA concluded:

“[T]he Florida Supreme Court explained as it upheld the murder conviction and death sentence, the defense ‘abandoned her pretrial objections to the record’s admissibility’ and ‘did not preserve’ them for appellate review… Because we are bound by Carr, we must conclude that Xolo did not preserve his challenge to his confession’s admission. Like the defendant in Carr, Xolo stated through counsel that he had no objection when the State offered the evidence at trial. He thus abandoned his pretrial objections.”

The 6th DCA understood that the ruling was somewhat counterintuitive, as a renewed objection at trial is almost certain not to change the judge’s mind. It also cited apparent conflict between Florida’s law on the issue (Fla. Stat. 90.104(1)) and Carr, but held that Carr is binding precedent in spite of this tension. The court wrote:

“To be sure, someone in Emilia Carr’s or Bacilio Xolo’s position faces a conundrum. Even after definitively ruling on admissibility, a court may still ask whether a party objects when the evidence is later offered at trial. When a party has nothing new to add after a definitive ruling that the evidence is admissible, what should the response be when the court again asks whether there is any objection?”

“A party either objects or does not. If the response is yes, then the party has necessarily renewed the objection. But that is what section 90.104(1) states is unnecessary to preserve the claim of error. If the response is no, then under Carr the objection is abandoned and not preserved even though—once again—the statute explicitly says that ‘a party need not renew an objection to preserve a claim of error for appeal.’”

Here, the 6th DCA conceded that Xolo had a point – Florida law (90.104(1)) does not seem to consider an objection to the admission of post-Miranda statements “waived” simply because the objection is not raised again at trial. Nevertheless, the 6th DCA ruled against Xolo, concluding:

“So long as Carr is good law, a party that has already received a definitive ruling on admissibility may have to renew the objection to admitting the evidence at every turn to preserve a claim of error for appeal despite section 90.104(1).”

“We recognize that parties and their counsel throughout our state may similarly face the conundrum when they are asked more than once in a case for their position on whether a specific item of evidence should be admitted. The most we can do here is flag the tension between the statute and the precedent for another look by the Florida Supreme Court in an appropriate case.”

In essence, the 6th DCA signaled that while Xolo’s argument did not win the day (due to Carr), it does have support under Fla. Stat. 90.104(1). Given this law, it does not seem to be necessary for a defendant to renew their pretrial objection to admission of post-Miranda statements at trial, if this was previously denied by the judge.

But Florida’s Supreme Court has not yet backtracked on this rule in Carr. As a result, Florida’s criminal defense attorneys should take note. Even if a pretrial motion to suppress a defendant’s post-Miranda statements is denied, it is wise to renew the objection at trial (despite the slim odds of the judge’s mind changing).

Otherwise, according to Xolo, the claim is waived on appeal in spite of the pretrial motion. And while this may appear contrary to state statutes, this will remain the law so long as the Carr rule is not rescinded. Thus, it is important to object to admission of post-Miranda statements both before and during trial!

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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