JOHNNY LEE SMITH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that Florida Standard Jury Instruction, Criminal Cases, 2.07, concerning unexplained possession of recently stolen property, does not violate a defendant's Fifth Amendment right to remain silent.
Petitioner was arrested for possession of stolen property and made no attempt to explain his possession. The trial court gave a jury instruction regar…
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OVERTON, Justice.
This is a petition for certiorari to review the Fifth District Court of Appeal’s decision reported as Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980), where the court approved Florida Standard Jury Instruction, Criminal Cases, 2.07, concerning petitioner’s unexplained possession of recently stolen property. The District Court of Appeal determined that its holding was in accordance with this Court’s decision in State v. Young, 217 So. 2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969), but noted that its decision conflicted with the First District Court of Appeal’s holding in Palmer v. State, 323 So. 2d 612 (Fla. 1st DCA 1975), cert. denied, 336 So. 2d 108 (Fla.1976). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (prior to April 1, 1980).
The instant record reflects that petitioner made no attempt to explain his possession of the stolen property at the time of his arrest. Petitioner contends that instruction 2.07 violates his fifth amendment right to remain silent. We answered this exact question in State v. Young and held that the instruction was proper. We reaffirm our holding in State v. Young which is in accord with the United States Supreme Court decisions on the same issue. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
We resolve the conflict by disapproving the First District’s holding in Palmer v. State and approving the opinion of the Fifth District in the instant case.
It is so ordered.
SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981)…ors which are not fundamental; therefore, they cannot be raised for the first time on appeal. Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980), cert. denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980), approved, 394 So. 2d 407 (Fla.1980); cf. Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981). Accordingly, the judgment and sentence of appellant are affirmed without prejudice to his right to seek appropriate relief, e. g., by Florida Rule of Criminal Procedure 3.850. S…
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Lynn v. State, 395 So. 2d 621 (Fla. 1st DCA 1981)…ther the Young holding was intended to extend beyond the specific facts before it: circumstances showing that the defendant made no explanation either at the time of arrest or at the time of trial. I also question the materiality of Smith v. State, 394 So. 2d 407 (Fla.1980), to the issue before us. Smith upheld the giving of the standard instruction under circumstances showing the defendant made no attempt to explain his possession of recently stolen property, either at the time of his arrest, or when he tes…1 / 2
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Dudley v. State, 511 So. 2d 1052 (Fla. 3d DCA 1987)…01 (Fla.1979); Turner v. State, 283 So. 2d 157 (Fla. 2d DCA 1973); In re S.L.T., 180 So. 2d 374, 378 (Fla. 2d DCA 1965). . Andrews v. Walton, 428 So. 2d 663 (Fla.1983); Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976). . See e.g., Smith v. State, 394 So. 2d 407 (Fla.1980), affirming 378 So. 2d 313 (Fla. 5th DCA 1980); State v. Young, 217 So. 2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969). .See e.g., McArthur v. State, 351 So. 2d 972, 976 n. 12 (Fla.1977); Mayo v. State,…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Turner v. United States, 396 U.S. 398 (U.S. 1970)
- Barnes v. United States, 412 U.S. 837 (U.S. 1973)
- State v. Young, 217 So. 2d 567 (Fla. 1968)
- Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)
- Young v. Florida, 396 U.S. 853 (U.S. 1969)
- Caffey v. Missouri, 396 U.S. 853 (U.S. 1969)
- Palmer v. State, 323 So. 2d 612 (Fla. 1st DCA 1975)