What Is the Procedure If Presentation of Mitigating Evidence Is Waived ?
In Koon v. Dugger, 619 So. 2d 246 (Fla. 1993) the Supreme Court of Florida outlined the procedure that must be followed when a defendant waives the presentation of mitigating evidence:
Counsel must inform the court on the record of the defendant's decision.
Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be.
The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence. Id. at 250; see also Anderson v. State, 822 So. 2d 1261, 1268 (Fla. 2002) (quoting Koon, 619 So. 2d at 250)).
"Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision." State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002).
As discussed in Clark v. State, 613 So. 2d 412, (Fla., 1992), this Court found that the trial court followed proper procedure and that Clark properly waived his right to present mitigation.
In the Duval County trial, both Clark and his counsel were aware of the precarious nature of his mitigation. Clark does not allege that counsel failed to investigate possible mitigation or failed to discover mitigation that should have been presented at trial.
In State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002), this Court made it clear that a defendant cannot make a knowing, intelligent waiver where counsel has not had adequate time to prepare mitigation. 838 So. 2d at 1113-14.