SAMUEL BARNES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Samuel Barnes was convicted of assault, aggravated battery, unlawful firearm possession, and related charges after a jury trial. The appellate court reversed his convictions based on prosecutorial misconduct regarding comments about his silence and defective charging language in the aggravated battery count.
The court reversed the conviction and sentence on the grounds that the prosecutor's comment regarding the defendant's silence after Miranda warnings constitutes reversible error without application of harmless error doctrine, and the aggravated battery count failed to properly allege the offense. The court declined to rule on the second issue given the reversal.
[1] A prosecutor's comment on a defendant's exercise of the right to remain silent after being advised of Miranda rights constitutes reversible error if preserved for appella…
[2] An information must properly charge the offense of aggravated battery to sustain a conviction.
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Join FLexlaw to unlock all legal intelligence“any improper comment concerning defendants exercise of their right to remain silent constitutes reversible error without regard to the harmless error doctrine where the issue is preserved for appellate review”
Establishes the controlling legal standard that prosecutorial comments on silence are per se reversible error in Florida jury trials
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Join FLexlaw to unlock all legal intelligenceBarnes was charged with attempted robbery with a shotgun, aggravated battery, possession of a short-barreled shotgun, display of a firearm while commi…
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KEHOE, Judge.
Appellant, defendant below, was charged by an information with attempted robbery with a shotgun, aggravated battery, possession of a short-barreled shotgun, display of a firearm while committing a felony, and possession of a firearm by a convicted felon. After a jury trial, appellant was found guilty of assault, as a lesser included offense of attempted armed robbery, and guilty of all other counts as charged. Appellant was adjudicated guilty and sentenced on each of the counts. From his judgment of conviction and sentence, appellant appeals.
Appellant raises the following three points on appeal: (1) that the trial court erred in failing to declare a mistrial because the prosecutor in his opening statement asserted that he had exercised his right to remain silent after being advised of his Miranda rights; (2) that the trial court erred in not sustaining his objection and granting his motion to strike after the prosecutor in closing argument avowed his personal belief in the truthfulness of the state’s key witness’ trial testimony; and (3) that the trial court erred in adjudicating him guilty of aggravated battery because that count of the information failed to properly charge him with the offense.
In regard to appellant’s first point on appeal, the record clearly reflects that the prosecutor in his opening statement asserted that the appellant had exercised his right to remain silent after being informed of his Miranda rights. It is well settled that in a jury trial in Florida any improper comment concerning defendants exercise of their right to remain silent constitutes reversible error without regard to the harmless error doctrine where the issue is preserved for appellate review, as was done here, through objection and motion for mistrial. See, e. g., Clark v. State, 363 So. 2d 331 (Fla.1978); Willinsky v. State, 360 So. 2d 760 (Fla.1978); Shannon v. State, 335 So. 2d 5 (Fla.1976); Bennett v. State, 316 So. 2d 41 (Fla.1975); and Gifford v. State, 355 So. 2d 436 (Fla. 4th DCA 1978).
In the light of this principle, it is our opinion that the prosecutor’s comment in this case constituted reversible error. In regard to appellant’s third point on appeal, this court has had occasion to rule upon the validity of an identically worded charge in an information for aggravated battery. See §§ 784.045(1) and 784.-03(1), Fla.Stat.1977. In our opinion in the instant case, as in Ferrell v. State, 358 So. 2d 843 (Fla. 3d DCA 1978), the information failed to properly charge appellant with the crime of an aggravated battery.
Accordingly, we must reverse appellant’s conviction and sentence for aggravated battery, because of the inadequate allegations in the information, without prejudice to the state to file an amended information. See, e. g., State v. Bye, 346 So. 2d 538 (Fla.1977); State v. Beasley, 317 So. 2d 750 (Fla.1975); Gibbs v. Mayo, 81 So. 2d 739 (Fla.1955); and Ferrell v. State, 358 So. 2d 843 (Fla. 3d DCA 1978).
Because of our determinations above, it is unnecessary for us to rule on appellant’s second point on appeal; however, we feel certain that the prosecutor will carefully consider any comments which he might make in regard to his opinion of the veracity of his witnesses.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ulysses LEE v. State, 422 So. 2d 928 (Fla. 3d DCA 1982)…tion the defendant’s post-arrest silence. See, e.g., David v. State, 369 So. 2d 943 (Fla.1979); Clark v. State, 363 So. 2d 331 (Fla.1978); Bennett v. State, 316 So. 2d 41 (Fla.1975); Ruiz v. State, 378 So. 2d 101 (Fla. 3d DCA 1979); Barnes v. State, 375 So. 2d 40 (Fla. 3d DCA 1979); Knight v. State, 374 So. 2d 1065 (Fla. 3d DCA 1979). The State candidly concedes as much. It argues, however, that the prohibition against comment on post-arrest silence applies only where the silence has been induced by assuranc…
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Monroe v. State, 396 So. 2d 241 (Fla. 3d DCA 1981)…comment by the prosecution upon the accused’s exercise of his right to remain silent in a jury trial, when properly preserved, is reversible error without regard to the harmless error rule. Clark v. State, 363 So. 2d 331 (Fla.1978); Barnes v. State, 375 So. 2d 40 (Fla.3d DCA 1979). The defendant urges that the only answer he could have made to the offending question was “no” and that therefore the impermissible inference, that the defendant did not talk, was set loose in the courtroom. Had the question been…
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Ruiz v. State, 378 So. 2d 101 (Fla. 3d DCA 1979)…ial, reversal is required by any reference to the defendant’s failure to make a statement to an arresting or investigating police officer. E. g., Clark v. State, 363 So. 2d 331 (Fla.1978); Bennett v. State, 316 So. 2d 41 (Fla.1975); Barnes v. State, 375 So. 2d 40 (Fla. 3d DCA 1979), and cases cited; Knight v. State, 374 So. 2d 1065 (Fla. 3d DCA 1979), and cases cited. In this court, the state claims that these cases do not apply because the remark was not directed to Ruiz’s silence after he was taken into cu…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- Nesby Lawrence Gibbs v. Mayo, 81 So. 2d 739 (Fla. 1955)
- State v. Beasley, 317 So. 2d 750 (Fla. 1975)
- Willinsky v. State, 360 So. 2d 760 (Fla. 1978)
- Abe Schonfeld et ux. v. Metro. Dade Cnty., 358 So. 2d 843 (Fla. 3d DCA 1978)
- Gifford v. State, 355 So. 2d 436 (Fla. 4th DCA 1978)