State v. Modeste

• Decision Date: 29 July 2011
• Docket Number: No. 5D07–2010.,5D07–2010.
• Citation: 66 So.3d 386
• Parties: STATE of Florida, Appellant,v.Joseph MODESTE, Appellee.
• Court: Florida District Court of Appeals

66 So.3d 386

STATE of Florida, Appellant,
v.
Joseph MODESTE, Appellee.

No. 5D07–2010.

District Court of Appeal of Florida, Fifth District.

July 29, 2011.

Appeal from the Circuit Court for Orange County, Bob Wattles, Judge.Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.Frank J. Bankowitz of Frank J. Bankowitz, P.A., Orlando, for Appellee.PER CURIAM.ON REMAND

In August, 2008, this court reversed a trial court order suppressing certain statements made by Modeste during custodial interrogation. See State v. Modeste, 987 So.2d 787 (Fla. 5th DCA 2008) ( Miranda warning provided to defendant was not inadequate because it did not expressly advise suspect that right to counsel included the right to have counsel present during

[66 So.3d 387]

interrogation). Our decision was quashed by the Florida Supreme Court in light of its decision in State v. Powell, 998 So.2d 531 (Fla.2008). See Modeste v. State, 4 So.3d 1217 (Fla.2009). When the United States Supreme Court accepted review of the Florida Supreme Court's decision in Powell, this court entered an order holding the instant case in abeyance pending disposition of Florida v. Powell in the United States Supreme Court.

The United States Supreme Court subsequently reversed the Florida Supreme Court, determining that the warnings given to Powell did not violate the principles espoused in Miranda.¹ Florida v. Powell, –––U.S. ––––, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). On remand, the Florida Supreme Court additionally determined that the warnings given to Powell did not violate the right against self-incrimination clause set forth in Article I, section 9 of the Florida Constitution. State v. Powell, 66 So.3d 905, 2011 WL 2374612 (Fla. 2011).

Accordingly, we reverse the trial court's order granting Modeste's motion to suppress and direct the trial court to reconsider its decision in light of Florida v. Powell, ––– U.S. ––––, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010) and State v. Powell, 66 So.3d 905, 2011 WL 2374612 (Fla. 2011). The trial court may, in its discretion, afford the parties an opportunity to present additional evidence on the motion to suppress.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.

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Notes:

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).