WhatsApp
How Far Does My Right to an Attorney Extend?
Thanks to the prevalence of crime-related T.V. shows, most of us know we have a right to an attorney. Many people think that right is an absolute right, so it may come as a surprise to find you do not have a right to an attorney in every situation, or until you invoke your right in a certain way. Having an experienced attorney by your side can be the difference between jail time and a having no charges filed against you, so it is important you understand when you have a right to an attorney.
Your Constitutional Rights.
Your right to an attorney stems from the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment gives you the right against incriminating yourself in a government investigation of you, while your Sixth Amendment guarantees you certain trial-related rights. Your right to an attorney is different under each amendment and attaches at different times.
Right to Counsel Under the Fifth Amendment.
Most people are familiar with the Miranda warnings, which include the right to remain silent and the right to an attorney. Your Miranda rights don’t automatically apply just because the police are questioning you, however. In order for your Miranda rights to apply, you must be both interrogated by police and in the custody of police, which generally means when you are arrested or otherwise are not free to leave the interrogation or questioning.
Just because your Miranda rights apply doesn’t mean you automatically get a lawyer, however. During custodial interrogation, clearly requesting counsel generally requires officers to stop questioning under the applicable Miranda rules; it does not promise that a lawyer will immediately arrive at the station. An ambiguous statement like, “I think I need an attorney” will not invoke your right to an attorney, you must clearly say, “I would like to speak to an attorney, and I will not answer any questions until I am provided with an attorney.”
Right to Counsel After Formal Proceedings Begin
The Sixth Amendment right attaches when formal adversarial judicial proceedings begin, such as by formal charge, indictment, information, or an initial judicial appearance that starts the prosecution. It protects the accused at critical stages of that prosecution, including plea proceedings, trial, and sentencing. Accepting a plea does not end the right to counsel at sentencing. Appointed counsel on a first appeal as of right is governed by additional constitutional and procedural protections; later discretionary appeals and collateral proceedings follow different rules.
Attachment and invocation are different concepts. The Sixth Amendment right is offense-specific, and waiver and police-questioning rules depend on the circumstances. Retaining or being appointed a lawyer does not automatically prohibit every investigative contact.
When Is Appointed Counsel Available?
Florida Rule of Criminal Procedure 3.111 provides for counsel for eligible indigent defendants, subject to the rule’s qualifications. In a misdemeanor or municipal-ordinance prosecution, the judge may enter a written order of no incarceration at least 15 days before trial, unless that timing is waived. This is a court order, not merely a prosecutor saying that jail will not be requested. It must cover the incarceration described in the rule, including probation revocation in that case. The rule also protects against prejudicial discharge of previously appointed counsel and requires immediate appointment for an otherwise eligible defendant if the order is properly withdrawn.
A no-incarceration order does not prevent a defendant from retaining private counsel. Eligibility, the precise charge, the court’s order, and the procedural stage all matter.
What Do I Do if I Have Been Arrested?
At Valiente Law, we firmly believe that you are innocent until proven guilty, no matter what you are charged with. Having a skilled attorney by your side can make a big difference in the outcome of your case. If you have been arrested, or are being investigated, it is imperative that you contact a defense attorney immediately, especially before speaking with the police. The attorneys at Valiente Law will defend you to the fullest extent possible. Contact Valiente Law today.
Posted in: Criminal