knowing and voluntary waiver in Florida

2017“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id. “[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights

2017“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id. “[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights, thereafter makes an equivocal or

2019But Porter only suggests that these are among eight factors “to be considered in determining whether a defendant made a knowing and voluntary waiver.” - 12 - Porter, 788 So. 2d at 927 .

2018As the Florida Supreme Court noted in Aguirre-Jarquin v. State, 90 So. 3d 593, 602 (Fla. 2009) and Porter v. State, 788 So. 2d 917, 927 (Fla. 2001), “the essence of the colloquy is to ensure the defendant makes a knowing and voluntary waiver of counsel.” Importantly, the focus is not on the “specific advice rendered by the trial court – for there are no ‘magic words’ under Faretta – but rather, on the defendant’s general understanding of his or her rights.” Potts, 718 So. 2d at 760 .

2017“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id. “[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights, thereafter makes an equivocal or

2017As the supreme court noted in Jones, “once there has been a knowing and voluntary waiver of the Miranda rights . . . ‘law enforcement officers may continue questioning until and unless the suspect clearly [unequivocally] requests an attorney.’” Jones, 748 So. 2d at 1020 (quoting Owen, 696 So. 2d at 719 ).

2015See, e.g., James v. State, 61 So.3d 492, 493 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (“[A] ‘violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.’ ” (quoting Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004))); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000).

2005Furthermore, a "violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal." Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004).

2015See, e.g., James v. State, 61 So.3d 492, 493 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (“[A] ‘violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.’ ” (quoting Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004))); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000).

2013“Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So.2d 358, 859 (Fla. 2d DCA 2007); see also Haag v. State, 67 So.3d 351, 352 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (noting that a double jeopardy claim may be made for the first time on appeal “absent a knowing and voluntary waiver”).

2005See, e.g., State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004).

2004This court and others have consistently held that violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal. [2] See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003); Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001); Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); Grene v. State, 70

2011In Aguirre-Jarquin, 9 So.3d at 602 , we reaffirmed that principle of law, holding that what matters is not the words the trial court employs but rather that the record reflects a defendant who “makes a knowing and voluntary waiver of counsel.” Although acknowledging our approval of a standard colloquy for trial courts to utilize, 7 we stressed that “a trial judge is not required to follow the colloquy word for word”; rather, “the essence of the colloquy is to ensure that the defendant makes a knowing and voluntary waiver of counsel.” 9 So.3d at 602 ; see also McKenzie v. State, 29 So.3d 272, 2

2011In Aguirre-Jarquin, 9 So.3d at 602 , we reaffirmed that principle of law, holding that what matters is not the words the trial court employs but rather that the record reflects a defendant who “makes a knowing and voluntary waiver of counsel.” Although acknowledging our approval of a standard colloquy for trial courts to utilize, 7 we stressed that “a trial judge is not required to follow the colloquy word for word”; rather, “the essence of the colloquy is to ensure that the defendant makes a knowing and voluntary waiver of counsel.” 9 So.3d at 602 ; see also McKenzie v. State, 29 So.3d 272, 2

2017“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id. “[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights

2017“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id. “[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights, thereafter makes an equivocal or

2017See also McCray v. State, 71 So. 3d 848, 867 (Fla. 2011) (noting that “what matters is not the words the trial court employs but rather that the record reflects a defendant who makes a knowing and voluntary waiver of counsel” (internal quotations 16 omitted)); McKenzie v. State, 29 So. 3d 272 , 281–82 (Fla. 2010) (rejecting claim that Faretta inquiry was insufficient for failure to inquire into the defendant’s experience with the criminal justice system).

2011In Aguirre-Jarquin, 9 So.3d at 602 , we reaffirmed that principle of law, holding that what matters is not the words the trial court employs but rather that the record reflects a defendant who “makes a knowing and voluntary waiver of counsel.” Although acknowledging our approval of a standard colloquy for trial courts to utilize, 7 we stressed that “a trial judge is not required to follow the colloquy word for word”; rather, “the essence of the colloquy is to ensure that the defendant makes a knowing and voluntary waiver of counsel.” 9 So.3d at 602 ; see also McKenzie v. State, 29 So.3d 272, 2

2017See Koenig v. State, 597 So.2d 256 (Fla. 1992).

2017See also McCray v. State, 71 So. 3d 848, 867 (Fla. 2011) (noting that “what matters is not the words the trial court employs but rather that the record reflects a defendant who makes a knowing and voluntary waiver of counsel” (internal quotations 16 omitted)); McKenzie v. State, 29 So. 3d 272 , 281–82 (Fla. 2010) (rejecting claim that Faretta inquiry was insufficient for failure to inquire into the defendant’s experience with the criminal justice system).

2015See, e.g., James v. State, 61 So.3d 492, 493 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (“[A] ‘violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.’ ” (quoting Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004))); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000).

2015See, e.g., James v. State, 61 So.3d 492, 493 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (“[A] ‘violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.’ ” (quoting Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004))); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000).

2015In the criminal context, however, “The right to self-representation may be exercised only by a defendant who is competent and makes a knowing and voluntary waiver of counsel.” Larkin v. State, 147 So.3d 452, 465 (Fla.2014).

2014Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008) (reversing restitution order entered after a hearing conducted in defendant’s absence; prosecutor admitted mailing notice to wrong address and defense attorney had been unable to locate client in time, so no evidence showed defendant had actual notice or knowledge of hearing and therefore did not show he waived his presence); see also Holmes v. State, 117 So.3d 447, 448 (Fla. 2d DCA 2013) (reversing restitution order entered after hearing conducted in defendant’s absence because nothing suggested defendant had notice or had waived his prese

2014Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008) (reversing restitution order entered after a hearing conducted in defendant’s absence; prosecutor admitted mailing notice to wrong address and defense attorney had been unable to locate client in time, so no evidence showed defendant had actual notice or knowledge of hearing and therefore did not show he waived his presence); see also Holmes v. State, 117 So.3d 447, 448 (Fla. 2d DCA 2013) (reversing restitution order entered after hearing conducted in defendant’s absence because nothing suggested defendant had notice or had waived his prese

2013“Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So.2d 358, 859 (Fla. 2d DCA 2007); see also Haag v. State, 67 So.3d 351, 352 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (noting that a double jeopardy claim may be made for the first time on appeal “absent a knowing and voluntary waiver”).

2013In Negron Gil De Rubio v. State, 987 So.2d 217, 219 (Fla. 2d DCA 2008), this court recognized that multiple convictions for “a single conspiracy with multiple objectives, including racketeering and drug trafficking,” violate double jeopardy.

2013“Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So.2d 358, 859 (Fla. 2d DCA 2007); see also Haag v. State, 67 So.3d 351, 352 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (noting that a double jeopardy claim may be made for the first time on appeal “absent a knowing and voluntary waiver”).

2012See Davis, 512 U.S. at 460-61 , 114 S.Ct. 2350 ; United States v. Mikell, 102 F.3d 470, 476 (11th Cir.1996); Cuervo, 967 So.2d at 163 ; Miles v. State, 60 So.3d 447, 451 (Fla. 1st DCA 2011); Alvarez v. State, 15 So.3d 738, 743 (Fla. 4th DCA 2009).

2012See Davis, 512 U.S. at 460-61 , 114 S.Ct. 2350 ; United States v. Mikell, 102 F.3d 470, 476 (11th Cir.1996); Cuervo, 967 So.2d at 163 ; Miles v. State, 60 So.3d 447, 451 (Fla. 1st DCA 2011); Alvarez v. State, 15 So.3d 738, 743 (Fla. 4th DCA 2009).