Attorney Must Indicate on Record If There Is Mitigating Evidence Which Despite His Recommendation Defendant Wishes to Waive
In Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), the defendant ordered his penalty phase counsel not to present any testimony or evidence. 619 So. 2d at 249.
While counsel followed Koon's wishes, he still presented an argument for mitigation based upon testimony presented during the guilt phase. Id. at 250.
The Court emphasized that it has "repeatedly recognized the right of a competent defendant to waive presentation of mitigating evidence." Id. at 249.
However, we also held that when a defendant waives presentation of mitigation against his attorney's wishes, the trial court must be informed of this decision, the attorney must indicate on the record whether there is mitigating evidence that could be presented and what that evidence would be, and the defendant must confirm that he has discussed these matters with his attorney and that despite his attorney's recommendation, he still wishes to waive mitigation. Id. at 250.
This ensures that a defendant knowingly and intelligently makes a waiver of mitigation. Chandler v. State, 702 So. 2d 186, 200 (Fla. 1997).
Thus, the record should "reflect a defendant's knowing waiver of his or her right to present mitigating evidence." Mora v. State, 814 So. 2d 322, 332-33 (Fla. 2002).