Can An Inefficient Counsel's Advice Lead to a Defendant's Waiver of Mitigation Unknowingly ?
In State v. Larzelere, 979 So. 2d 195, 204 (Fla. 2008), the court agreed with the postconviction court's ruling that "Larzelere's waiver could not have been made knowingly and intelligently because her counsel was unable to adequately advise her regarding potential mitigation," and that counsel's performance was deficient because counsel did not sufficiently investigate possible mitigation. 979 So. 2d at 203;
See also State v. .Pearce, 994 So. 2d 1094, 1102-03 (Fla. 2008) (finding competent substantial evidence to support the trial court's finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce's waiver).
In Spann v. State, 985 So. 2d 1059 (Fla. 2008), the court found Spann's argument that his waiver was involuntary because of his ongoing depression to be without merit. Id. at 1072.
The Court found that Spann failed to demonstrate he was depressed at the time he waived his rights to present mitigation where the "only evidence indicating a diagnosis and treatment for depression was Spann's transfer form from Martin County Jail to Florida State Prison." Id.
Further, we noted that while the form indicated Spann was on medication for depression, the diagnosis and treatment occurred after Spann's trial and at the hearing where Spann waived his rights, he indicated he was not on medication. Id.
The Court also found that counsel was not ineffective where counsel investigated possible mitigation and discussed it with Spann before he entered his waiver. Id.
Also dissimilar is our analysis in Gill v. St ate, 14 So. 3d 946 (Fla. 2009), where the Court considered whether a mentally ill person can enter a knowing, intelligent guilty plea and waive mitigation.