EDWIN LOVE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1991-07-09
No. 90-1015
Before NESBITT, BASKIN and JORGENSON, JJ.
583 So. 2d 371 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 4 cases

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Synopsis

Edwin Love was convicted of robbery for taking a purse from a telephone booth. The Florida District Court of Appeal reversed his conviction because the trial judge made an impermissible comment on Love's constitutional right not to testify by telling the jury they would not hear "both sides of the story," which was fairly susceptible of referring to the defendant's failure to testify.


Holding

The court held that the judge's comment was impermissible because it was "fairly susceptible" of being interpreted by the jury as referring to Love's failure to testify, effectively highlighting to the jury that Love was not offering his side of the story. The error required reversal because the state failed to prove beyond a reasonable doubt that the error did not contribute to the verdict.


Headnotes

[1] A judge's statement to the jury that they will not hear "both sides of the story" is impermissibly susceptible to being interpreted as a comment on the defendant's failur…

[2] An impermissible comment on a defendant's right not to testify requires reversal if the state cannot prove beyond a reasonable doubt that the error did not contribute to…

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Key Quotes

“you will not hear both sides of the story”

The trial judge's impermissible statement to the jury that the court held was fairly susceptible of being interpreted as referring to the defendant's failure to testify

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Facts & Procedural History

On July 2, 1988, Love took a purse from a telephone booth while the victim was using it. When the victim chased Love and pounded on his car asking for…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Edwin Love appeals a judgment of conviction and sentence for robbery. We reverse.

On July 2, 1988, Love took a purse from a telephone booth while the victim was making a call. The victim chased Love as he ran to his car. In an attempt to recover her purse, the victim pounded on Love’s car and pleaded with him to return her purse.1 According to her subsequent testimony, when Love put the car into gear, the victim moved away from the car in fear, and Love drove away. The police apprehended Love in possession of the purse. The state charged Love with robbery. During jury selection, the prosecutor questioned a juror concerning her feelings about a defendant’s failure to testify. Love objected. The judge overruled the objection and informed the jury: “I am going to tell you the defendant does not have to testify, will probably not testify, you will not hear both sides of the story.” Love objected to the court’s statement and requested that the judge grant a mistrial. The judge overruled Love’s objection and denied the request for a mistrial. At the conclusion of the presentation of evidence, the judge denied Love’s motion to reduce the robbery charge to theft.

The jury found Love guilty of robbery.

Love contends that the judge’s statement constituted an impermissible comment on his right not to testify.

We agree that the judge’s comment — “you will not hear both sides of the story” — is “ ‘fairly susceptible’ of being interpreted by the jury as referring to a criminal defendant’s failure to testify....” David v. State, 369 So. 2d 943, 944 (Fla.1979); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); State v. Kinchen, 490 So. 2d 21 (Fla.1985); see Diecidue v. State, 131 So. 2d 7 (Fla.1961); Danford v. State, 492 So. 2d 690 (Fla. 4th DCA 1986); McClain v. State, 353 So. 2d 1215 (Fla. 3d DCA 1977), cert. denied, 367 So. 2d 1126 (Fla.1979).

The judge’s impermissible comment “highlighted for the jury the fact that [Love] was not testifying at trial . DiGuilio, 491 So. 2d at 1138; the comment effectively informed the jury that Love would not offer an explanation of his actions. That error requires reversal of Love’s conviction and sentence.

The jury may have considered Love’s failure to offer his “side of the story” when it found that he put the victim in fear by putting the car in gear.2 We therefore hold that the state failed to prove beyond a reasonable doubt that the error did not contribute to the verdict. DiGuilio; Stone v. State, 548 So. 2d 307 (Fla. 2d DCA 1989); Freeman v. State, 538 So. 2d 936 (Fla. 2d DCA 1989); see Ciccarelli v. State, 531 So. 2d 129 (Fla.1988); State v. Lee, 531 So. 2d 133 (Fla.1988).

Accordingly, we reverse the conviction and sentence and remand for a new trial.

Reversed and remanded.

. The victim’s testimony was ambiguous as to whether she pounded on the roof or on the hood of the car. . Love also argues that the trial court erred in failing to reduce the robbery charge to theft; that argument is without merit. Defense counsel conceded that Love committed a theft; at issue was whether Love committed a robbery. To constitute robbery, defendant must employ “the use of force, violence, assault, or putting in fear” in the course of taking money or other property from a person. § 812.13(1), Fla.Stat. (1987).

Defendant's act may be "subsequent to the taking of the property ... if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla.Stat. (1987); see Fonseca v. State, 547 So. 2d 1032 (Fla. 3d DCA 1989).

The state did not contend that Love used force or violence prior to, contemporaneous with, or subsequent to taking the victim’s purse; it presented evidence that the victim was standing in front of Love’s car and that she moved away in fear when he started the car. That evidence was sufficient to submit the cause to the jury on the robbery charge. Rolle v. State, 268 So. 2d 541 (Fla. 3d DCA 1972); see Brown v. State, 397 So. 2d 1153 (Fla. 5th DCA 1981); Thomas v. State, 183 So. 2d 297, 300 (Fla. 3d DCA 1966); see also McCloud v. State, 335 So. 2d 257, 259 (Fla.1976); cf. Santilli v. State, 570 So. 2d 400 (Fla. 5th DCA 1990); Walker v. State, 546 So. 2d 1165 (Fla. 3d DCA 1989).


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Citator

Cited By

  • Lemus v. State, 641 So. 2d 177 (Fla. 5th DCA 1994)
    …551 So. 2d 607 (Fla. 5th DCA 1989), and, on the other end, holding that the nexus is not interrupted when the defendant uses force after the theft but to aid in her escape, citing Santilli v. State, 570 So. 2d 400 (Fla. 5th DCA 1990); Love v. State, 583 So. 2d 371 (Fla. 3d DCA 1991); and Rumph v. State, 544 So. 2d 1150 (Fla. 5th DCA 1989). In a motion to dismiss, the trial court must resolve every reasonable inference in favor of the state. State v. Booker, 529 So. 2d 1239, 1240 (Fla. 1st DCA 1988) (citing S…
  • Recardo Clayton v. State, 974 So. 2d 1172 (Fla. 3d DCA 2008)
    …PER CURIAM. Affirmed. See Magnotti v. State, 842 So. 2d 963 (Fla. 4th DCA 2003), review denied, 857 So. 2d 196 (Fla.2003); State v. Baldwin, 709 So. 2d 636 (Fla. 2d DCA 1998); Love v. State, 583 So. 2d 371 (Fla. 3d DCA 1991).…

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