STATE OF FLORIDA, PETITIONER,
v.
JAMES B. KEARSE, RESPONDENT
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Florida Supreme Court held that a witness comment implicating defendant's right to remain silent constitutes harmless error beyond a reasonable doubt, reversing the district court's reversal of conviction.
A comment on a defendant's silence must be evaluated under the harmless error doctrine, and the witness comment here was harmless beyond a reasonable doubt.
[1] A comment on a defendant's right to remain silent is evaluated under the harmless error doctrine and does not require reversal if harmless beyond a reasonable doubt.
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Join FLexlaw to unlock all legal intelligenceKearse was convicted at trial. During the proceedings, a witness made a comment that could reasonably be construed as implicating Kearse's right to re…
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McDONALD, Chief Justice.
We granted review of Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985), because it presents the same issue as the questions certified in Rowell v. State, 450 So. 2d 1226 (Fla.5th DCA 1984), and DiGuilio v. State, 451 So. 2d 487 (Fla. 5th DCA 1984). In Kearse the district court reversed Kearse’s conviction and remanded for a new trial because of a comment concerning Kearse’s right to remain silent. The court went on to say that the instant case is indistinguishable from Rowell. We recently held that the comment in Rowell did not constitute a comment on silence and quashed that deci sion. State v. Rowell, 476 So. 2d 149 (Fla.1985).
Our review of this record indicates that one could reasonably conclude that the witness’ comment here implicated Kearse’s right to remain silent. It is, therefore, more like DiGuilio than Rowell. In State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), we held that a comment on a defendant’s remaining silent should be evaluated under the harmless error doctrine. Applying that test to the instant case, we find the witness’ comment to have been harmless beyond a reasonable doubt. Therefore, we quash that portion of the instant decision granting a new trial and direct the district court to affirm his conviction. We remand for consideration of Kearse’s third point on appeal, concerning sentencing errors, because that point is no longer moot.
It is so ordered.
BOYD, OVERTON and SHAW, JJ., concur. ADKINS, EHRLICH and BARKETT, JJ., dissent.
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Citator
Cited By
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Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996)…consecutive.” Downs v. State, 616 So. 2d 444, 445 (Fla.1993). The other grounds urged for reversal are found to be without merit. See Sections 59.041, 90.803(18)(e), Fla.Stat. (1993); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); State v. Kearse, 491 So. 2d 1141 (Fla.1986); Jacobs v. State, 396 So. 2d 1113 (Fla.1981), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Salvatore v. State, 366 So. 2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Hester v. Sta…
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Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987)…SHIVERS, Judge. In State v. Kearse, 491 So. 2d 1141 (Fla.1986), the supreme court quashed this court’s reversal of appellant’s conviction in Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985), and remanded with instructions that this court affirm Kearse’s conviction and consider the sentencing issue…
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Colden v. State, 669 So. 2d 1071 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. State v. Kearse, 491 So. 2d 1141 (Fla.1986).…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- DiGUILIO v. State, 451 So. 2d 487 (Fla. 5th DCA 1984)
- Alonza Rowell v. State, 450 So. 2d 1226 (Fla. 5th DCA 1984)
- State v. Alonza Rowell, 476 So. 2d 149 (Fla. 1985)
- Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985)