STATE OF FLORIDA, PETITIONER,
v.
GEORGE BURNS, RESPONDENT
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The Florida Supreme Court reversed a Third District Court of Appeal decision that had reversed a criminal conviction due to a Fifth Amendment violation from an impermissible comment on the defendant's post-arrest silence. The court held that a harmless error analysis rather than a per se reversal rule should apply to such Fifth Amendment violations.
The Florida Supreme Court answered the certified question affirmatively, holding that harmless error analysis rather than a per se reversal rule applies to Fifth Amendment violations. The court articulated a specific harmless error test focusing on whether there is a reasonable possibility the error affected the verdict, with the burden on the state to prove harmlessness beyond a reasonable doubt.
[1] An impermissible comment on a defendant's post-arrest silence violates the Fifth Amendment right to remain silent.
[2] An appellate court must determine whether an impermissible comment on a defendant's post-arrest silence was harmless error.
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Join FLexlaw to unlock all legal intelligence“The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.”
Establishes the proper harmless error standard by which appellate courts must analyze Fifth Amendment violations
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Join FLexlaw to unlock all legal intelligenceGeorge Burns was convicted in a criminal case. During the arrest process, the arresting officer made an impermissible comment about the defendant's po…
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PER CURIAM.
This cause is before us on petition to review the district court’s decision in Burns v. State, 466 So. 2d 1207 (Fla. 3d DCA 1985). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The Third District Court of Appeal reversed respondent’s criminal conviction on the ground that defendant’s fifth amendment right to remain silent had been violated by an impermissible comment on defendant’s post-arrest silence by the arresting officer. The court certified the following question as one of great public importance:
Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So. 2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal explicated in Donovan v. State, 417 So. 2d 674 (Fla.1982)?
466 So. 2d at 1210.
We have answered this question in the affirmative in State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Accordingly, we quash the decision below and remand with instructions that the Third District Court of Appeal review the record in its entirety and determine whether the impermissible comment was in fact harmless in accordance with the standard expressed in DiGuilio:
The [harmless error] test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
Id. at 1139.
It is so ordered.
McDonald, C.J., and BOYD, OVER-TON and SHAW, JJ., concur. EHRLICH and BARKETT, JJ., concur specially with an opinion.
ADKINS, J., dissents.
EHRLICH, Justice,
concurring specially.
I concur because this case is controlled by State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), for the reasons expressed in the dissenting opinion therein.
BARKETT, Justice,
concurring specially.
I concur because this case is controlled by State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). I agree, however, with Justice Adkins’ opinion in that case.
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Bonine v. State, 811 So. 2d 863 (Fla. 5th DCA 2002)…ached .226, drove down the highway, weaving, and overtook and ran into the rear of a motorcycle, mistaking the motorcycle for a deer, and continued down the highway for a quarter of a mile until he ran into a concrete sign/bench. In State v. Burns, 491 So. 2d 1139 (Fla.1986), the supreme court discussed our obligation as an appellate court in applying the harmless error test. Basically, the rule is that if we believe beyond a reasonable doubt that the error did not affect the verdict, then we should uphold th…
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Burns v. State, 494 So. 2d 301 (Fla. 3d DCA 1986)…PER CURIAM. This court’s opinion in Burns v. State, 466 So. 2d 1207 (Fla. 3d DCA 1985), entered on April 9, 1985, was reviewed by the Supreme Court of Florida upon petition for review filed by appellee, The State of Florida, State v. Burns, 491 So. 2d 1139 (Fla.1986), whereupon the supreme court granted appellee’s petition and quashed and remanded the cause for reconsideration in light of the decision in State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Now, therefore, on reconsideration of the appeal…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- United States v. Hasting, 461 U.S. 499 (U.S. 1983)
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- Donovan v. State, 417 So. 2d 674 (Fla. 1982)
- Tamburrino v. S.C. Ins. Co., 466 So. 2d 1207 (Fla. 3d DCA 1985)
- Burns v. State, 466 So. 2d 1207 (Fla. 3d DCA 1985)