RANDY EUGENE KINCHEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
RANDY EUGENE KINCHEN, APPELLANT,
STATE OF FLORIDA, APPELLEE
432 So. 2d 586
Florida District Court of Appeal, Fourth District (1983)
Negative Treatment
Cited by 8 cases
Opinion of the Court
PER CURIAM:
Upon review of the record we conclude that the appellant is entitled to a new trial because a comment was made during closing arguments which was fairly susceptible of being interpreted by the jury as referring to the appellant’s failure to testify. The Florida Supreme Court has held that such comments require the granting of a motion for mistrial or, if such motion is denied, a reversal for new trial. David v. State, 369 So. 2d 943 (Fla.1979); Trafficante v. State, 92 So. 2d 811 (Fla.1957); Sublette v. State, 365 So. 2d 775 (Fla. 3d DCA 1979); DeLuna v. State, 308 F. 2d 140 (5th Cir. 1962).
Accordingly, the judgment is reversed and this cause is remanded for further proceedings in accord herewith.
ANSTEAD, HERSEY and HURLEY, JJ., concur.
Other
PER CURIAM.
The petition for rehearing and other relief is denied. However, we acknowledge that the First and Second District Courts have, on at least two occasions, apparently invoked a different standard on review than that established by the Florida Supreme Court and followed by this court in resolving this appeal. See Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982) and State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980).
ANSTEAD, HERSEY and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Kinchen, 490 So. 2d 21 (Fla. 1985)…McDONALD, Justice. In Kinchen v. State, 432 So. 2d 586 (Fla. 4th DCA 1983), the district court acknowledged conflict between Kinchen and Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982), review denied, 426 So. 2d 26 (Fla.1983), and State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980). We have jurisdicti…
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State v. Thornton, 491 So. 2d 1143 (Fla. 1986)…ER-TON and SHAW, JJ., concur. EHRLICH, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs. . Conflict arises in this case because the district court applied the standard of review it adopted in Kinchen v. State, 432 So. 2d 586 (Fla. 4th DCA 1983). In Kinchen, the court acknowledged conflict with Gains and Bolton on this point.…
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Thornton v. State, 442 So. 2d 1104 (Fla. 4th DCA 1983)…enalty for the exercise of his constitutional right to be silent. The standard to be applied in measuring whether a comment impinges upon the constitutionally guaranteed right to remain silent is expressed in our recent opinion of Kinchen v. State, 432 So. 2d 586 (Fla. 4th DCA 1983). We apply that standard here and conclude that a transgression occurred. Thus, appellant is entitled to a new trial. [*1107] REVERSED and REMANDED for NEW TRIAL. HERSEY, HURLEY and WALDEN, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- De Luna v. United States, 308 F.2d 140 (5th Cir. 1962)
- Russ v. State, 92 So. 2d 811 (Fla. 1957)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982)
- State v. Bolton, 383 So. 2d 924 (Fla. 2d DCA 1980)
- Sublette v. State, 365 So. 2d 775 (Fla. 3d DCA 1978)