Defendant's Right to Testify at Both the Guilt and Penalty Phase Does Not Require Procedural Safeguards
In Torres-Arboledo v. State, 524 So. 2d 403, 410 (Fla. 1988), the Court addressed whether due process required that the trial court obtain from the defendant an on-the-record waiver of the right to testify in the guilt phase.
The Court stated:
Although we agree that there is a constitutional right to testify under the due process clause of the United States Constitution, . . . this right does not fall within the category of fundamental rights which must be waived on the record by the defendant himself.
We view this right to be more like an accused's right to represent himself.
Although such a right has been expressly recognized by the United States Supreme Court . . . this right has not been considered so fundamental as to require the same procedural safeguards employed to ensure that a waiver of the right to counsel is knowingly and intelligently made. Id. at 410-11.
In Torres-Arboledo, the Court relied in part on Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984), where the Second District stated that the right to testify may be waived by the defendant's attorney "in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings." Cutter, 460 So. 2d at 539; See Torres-Arboledo, 524 So. 2d at 410 (expressly approving Cutter);
See also Occhicone v. State, 570 So. 2d 902, 905 (Fla. 1990) (relying on Torres-Arboledo to hold that the trial court did not err in not telling Occhicone specifically that he had the right to testify on his own behalf).
The standard adopted in Torres-Arboledo applies to the defendant's right to testify at both the guilt and penalty phase. See Lawrence v. State, 831 So. 2d 121, 132 (Fla. 2002).