Category Archives: Uncategorized

Miranda Warnings – The Interrogator has a duty to clarify an ambiguous waiver

As we have previously discussed, Miranda Warnings are only required when someone is in custody and subject to interrogation.  An interrogation refers to direct questioning by police after a suspect has been taken into custody. The Supreme Court ruled as much in 1980 after Thomas Innis, a man who had been arrested for robbing a taxi driver at gunpoint, ended up leading his arresting officers to the gun he used in his crimes. He did this after hearing two officers discuss their concern for mentally disabled children in the area who might find the gun and hurt themselves. The Supreme Court ruled that the shotgun was admissible in court because Innis’s statement had been spontaneous, and was not technically the product of “interrogation.” Remember, voluntary statements are admissible.

No matter how serious the crime, you are protected by your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel.  Anyone who is in custody and being questioned should specifically invoke your rights.  Unless you explicitly say that you are invoking your right to remain silent, you might not actually be exercising it, the Supreme Court ruled in its controversial 2010 decision in a case called Berghuis, Warden v. Thompkins. The defendant, Van Chester Thompkins, was interrogated by police for three hours without saying a word. Towards the end of the interrogation, when asked if he prayed to God to forgive him for the shooting he was suspected of, he answered, “Yes.” The majority ruled that his offhanded confession was unprotected by Miranda. Justice Sonia Sotomayor, dissenting, remarked that the court had concluded “that a suspect who wishes to guard his right to remain silent … must, counterintuitively, speak.”

So here is an example of a recent case involving a waiver of the Miranda warnings.  At the beginning of the interrogation,  the following exchange took place:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

A: Uh-huh.

Q: Anything you say can and will be used against you in a court of law.

A: Uh-huh.

Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

A: Uh-huh.

Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning.  So if you don’t like the way it’s going, you can say, whoa, [detective].

A: I don’t have no lawyer, so —

Q: You — –

A: I don’t even have no money to call a lawyer.

Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

A: Uh-huh.

Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now. (emphasis added).

Too often people waive their rights to remain silent and have an attorney present.  Once the Miranda warnings are read and then waived, then the interrogator uses his training and expertise to illicit incriminating statements that are recorded and will be used later in trial.   In the scenario above, the Defendant waived his rights and admitted to committing the crimes charged.  Luckily for this Defendant, the Miranda warnings were captured on video.

A Motion to Suppress was filed and argued to the Court because the waiver of his Miranda rights (“I don’t have no lawyer, so — I don’t even have no money to call a lawyer.”) was ambiguous.   The Courts have held that the Interrogator has a duty to clarify that there is a knowing and intelligent waiver.  “[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

Even if an interrogation has begun and you have answered some questions, you can stop the questioning by telling police that you are exercising your right to stay silent.

If you or a loved one has been arrested and you believe the police violated your Miranda rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.


This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

Criminal Defense attorney Broward County
Miranda Warnings Broward County
Criminal Defense attorney Miami-Dade County
Miranda Warnings Miami-Dade County
Criminal Defense attorney Palm Beach County
Miranda Warnings Palm Beach County

Minimum Mandatory Sentences

Broward County Criminal Defense Attorney explains Florida’s Minimum Mandatory Sentences…by Neil C. Kerch

Often, I am asked, “How can I get around the minimum mandatory sentence?” Florida has minimum mandatory sentences that judges cannot usually override.  Some examples of Florida Mandatory Minimum Sentences for First-Time Offenders:

  • Aggravated assault with a firearm (10-20-Life offense): Three years
  • Armed burglary, including armed breaking and entering a car (10-20-Life offense): 10 years
  • Felon in possession of a firearm: Three years
  • Heroin, cocaine or oxycodone possession: Less than 14 grams, three years; more than 14 grams, 15 years; more than 28 grams, 25 years
  • Possession, cultivation of marijuana with intent to distribute: Three years

Examples of Florida Mandatory Minimum Sentences for Repeat Offenders:

  • Repeat murder or homicide: Life imprisonment
  • Repeat first-degree felony: 30 years
  • Repeat second-degree felony: 15 years
  • Repeat first-degree misdemeanor: One year
  • Repeat second-degree misdemeanor: 60 days

Minimum mandatory sentences are among the most counterproductive and they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

A recent case of the 4thDistrict Court of Appeals reversed a downward departure, whereby the Trial Judge granted a downward departure motion and waived the minimum mandatory sentence without legal justification. The State appealed and was successful in having the case remanded.  The Appeals court stated that  Trial courts have no discretion to grant a motion for downward departure when the conviction implicates the (10-20-Life offense) Florida Statute 775.087(2).

Although the Court did not have discretion in this case, there are limited ways to avoid a minimum mandatory sentence.  One of the ways to avoid a minimum mandatory sentence is through the youthful offender statutes.  Another way is to have an reputable, experienced, professional and personable attorney negotiate with the State Attorney’s Office.  Over the course of my legal career I have successfully negotiated resolutions that waive the minimum mandatory sentences in Broward, Palm Beach and Miami-Dade Counties.  If you are facing a sentence that involves the imposition of a minimum mandatory sentence, you can contact Broward Criminal Defense Attorney Neil Kerch.  I have the professional resources and experience to help you fight for the best possible outcome.


174 So. 3d 488

Criminal law — Sentencing — Mandatory minimum — 10-20-Life law — Trial court had no discretion to grant downward departure from three-year mandatory minimum sentence under 10-20-Life law where defendant used firearm during aggravated assault

STATE OF FLORIDA, Appellant, v. STEVEN RAY BRAY, Appellee. 4th District. Case Nos. 4D13-4771 and 4D14-441. August 19, 2015. Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562013CF000690A. Counsel: Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.

(MAY, J.) In these consolidated appeals, the defendant appeals his conviction for aggravated assault with a firearm. The State appeals the defendant’s downward departure sentence for that conviction. The defendant argues the prosecutor’s comments in closing argument constituted fundamental error. We disagree and affirm his conviction. The State argues the trial court erred when it failed to impose the three-year mandatory minimum sentence under the 10-20-Life statute. The defendant candidly admits the sentencing error. We therefore affirm the defendant’s conviction in case number 14-0441, but reverse the defendant’s sentence in case number 13-4771, and remand the case to the trial court for resentencing.

The facts underlying the charge and trial are largely irrelevant to our decision. The State charged the defendant by information with aggravated assault with a firearm. The jury convicted the defendant as charged. The trial court adjudicated him guilty, but granted a downward departure motion and sentenced him to one year in county jail, two years’ community control, and two years’ probation over the State’s objection.

In the State’s appeal, it argues the trial court erred when it failed to impose the mandatory minimum sentence under section 775.087(2), Florida Statutes (2013), due to the defendant’s use of a firearm during the aggravated assault. The defendant candidly agrees. Trial courts have no discretion to grant a motion for downward departure when the conviction implicates section 775.087(2). State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (“The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme.”).

We find no merit in the defendant’s appeal of his conviction. We reverse his sentence on the State’s appeal, and remand the case to the trial court to re-sentence the defendant in accordance with section 775.087(2), Florida Statutes (2013).

Affirm Case No. 14-0441. Reverse and Remand on Case No. 13-4771. (WARNER and KLINGENSMITH, JJ., concur.)


This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

Criminal Defense attorney Broward County
Minimum Mandatory Sentences Broward County
Criminal Defense attorney Miami-Dade County
Minimum Mandatory Sentences Miami-Dade County
Criminal Defense attorney Palm Beach County
Minimum Mandatory Sentences Palm Beach County