LUIS GUTIERREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Luis Gutierrez was convicted of trafficking in cocaine and conspiracy to traffic in cocaine. He appealed on several grounds, including that the prosecutor made improper comments on his right to remain silent during cross-examination and closing argument. The court affirmed the conviction, finding that because Gutierrez failed to object at trial, the issue was not preserved for appeal and did not constitute fundamental error.
The court held that improper comments on a defendant's right to remain silent are not fundamental error and must be objected to and preserved at trial through a timely objection and motion for mistrial. Since Gutierrez failed to object, the issue was not preserved for appeal and the conviction must be affirmed.
[1] A defendant must object to a prosecutor's comment and move for a mistrial to preserve the issue for appellate review.
[2] A timely objection to a prosecutor's comment is required to allow for a curative instruction or admonishment to counsel.
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Join FLexlaw to unlock all legal intelligence“any remark which is 'fairly susceptible' of being interpreted as a comment on silence creates a 'high risk' of error”
Establishes the standard for identifying improper comments on the right to remain silent
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Join FLexlaw to unlock all legal intelligenceGutierrez was charged with and convicted of trafficking in cocaine and conspiracy to traffic in cocaine. During the trial, the prosecutor made remarks…
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SHAHOOD, J.
We affirm appellant’s conviction of trafficking in cocaine and conspiracy to traffic in cocaine. Appellant raises several issues in his appeal, all of which we find to be without merit. We write, however, to discuss appellant’s first issue, which concerns comments made by the prosecutor during cross-examination and closing argument regarding appellant’s right to remain silent.
Appellant claims that during his cross-examination and in closing argument, improper comments were made by the prosecutor on his right to remain silent. While the prosecutor’s remarks during closing argument were “fairly susceptible” of being interpreted by the jury as a comment on appellant’s right to remain silent, such remarks were unpreserved. See, e.g., Dean v. State, 690 So. 2d 720, 724 (Fla. 4th DCA 1997)(noting that “any remark which is ‘fairly susceptible’ of being interpreted as a comment on silence creates a ‘high risk’ of error”) (citations omitted).
In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial. See Allen v. State, 662 So. 2d 323, 328 (Fla.1995). While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel. See Nixon v. State, 572 So. 2d 1336, 1340-41 (Fla.1990). Absent fundamental error, this issue must be affirmed. See Weiand v. State, 701 So. 2d 562, 565 (Fla. 2d DCA 1997), quashed on other grounds, 24 Fla.L. Weekly S124, 732 So. 2d 1044 (Fla.1999). While an improper comment on a defendant’s right to remain silent may be constitutional error, it is not considered fundamental error. See State v. Marshall, 476 So. 2d 150, 153 (Fla.1985)(citing Clark v. State, 363 So. 2d 331 (Fla.1978), receded from in part on other grounds, State v. DiGuilio, 491 So. 2d 1129 (Fla.1986)).
Since appellant failed to object to the remarks at trial and since an improper comment on a defendant’s right to remain silent is not fundamental error which may be raised on appeal without an objection at trial, any errors were not preserved for appeal. See Clark, 363 So. 2d at 333-34; Murphy v. International Robotics Sys., Inc., 710 So. 2d 587, 590 (Fla. 4th DCA), review granted, 722 So. 2d 193 (Fla.1998).
AFFIRMED.
DELL and GROSS, JJ., concur.
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Talley v. State, 260 So. 3d 562 (Fla. 3d DCA 2019)
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Basil Burford v. State, 8 So. 3d 478 (Fla. 4th DCA 2009)…to the comment and move for a mistrial. While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel.” [*481] Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999) (citation omitted). Burford failed to object to the first comment and, therefore, failed to preserve his challenge. Even if it were preserved, we find the comment is not fairly susceptible of being interpreted as a comment o…
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McKEEVER v. State, 764 So. 2d 688 (Fla. 1st DCA 2000)…e reverse and remand for further proceedings consistent with this opinion. The trial court should have held an evidentiary hearing to determine if the state had a continuing need to retain the property. See Raffone v. Fort Lauderdale Police Dep’t, 731 So. 2d 94, 94 (Fla. 4th DCA 1999); Calavenzo v. State, 695 So. 2d 857, 857 (Fla. 4th DCA 1997). The trial court erred in summarily denying the motion without such a hearing. See Davidson v. State, 751 So. 2d 189, 190 (Fla. 1st DCA 2000) (“[A]ppellant sought r…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Nixon v. State, 572 So. 2d 1336 (Fla. 1990)
- State v. Marshall, 476 So. 2d 150 (Fla. 1985)
- Allen v. State, 662 So. 2d 323 (Fla. 1995)
- Dean v. State, 690 So. 2d 720 (Fla. 4th DCA 1997)
- Payton v. State, 732 So. 2d 1044 (Fla. 1999)
- Weiand v. State, 732 So. 2d 1044 (Fla. 1999)
- Murphy v. Int'l Robotics Sys., Inc., 710 So. 2d 587 (Fla. 4th DCA 1998)
- Webb v. State, 701 So. 2d 562 (Fla. 1st DCA 1997)