JOHNNY RICARDO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the claim regarding ineffective assistance of counsel based on the prosecutor's comments on post-arrest silence, but affirmed the denial of other claims.
Appellant claimed ineffective assistance of counsel for failing to object to prosecutor's comments on his post-arrest silence. The state argued it was…
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PER CURIAM.
Johnny Ricardo appeals from an order summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Appellant alleged that his trial counsel rendered ineffective assistance because he failed to object to the prosecutor’s comments during closing argument-on his post-arrest silence. The state’s response to the motion, which was adopted by the trial court, attached excerpts from the trial transcript showing that appellant’s testimony and his counsel’s closing argument had raised the issue of his post-arrest silence. While the state is usually prohibited from commenting on the defendant’s silence, if the defense raises the issue the state may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).
However, the state’s response may be objectionable if its “extent and content” goes beyond the scope of a fair comment. See Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). We are unable to make that determination on appeal because the record does not include a transcript of the state’s closing argument. We therefore reverse and remand for further proceedings on this allegation only.. The denial of relief on the remaining allegations in the motion is affirmed.
Affirmed in part, reversed in part, and remanded.
STONE, GROSS and TAYLOR, JJ., concur.
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MacHin v. State, 267 So. 3d 1098 (Fla. 4th DCA 2019)
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Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010)…pplying this concept in the context of post-arrest silence, if a defendant raises the issue of his own post-arrest silence, the State may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Ricardo v. State, 756 So. 2d 215, 216 (Fla. 4th DCA 2000); Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). However, the extent and content of the State’s response is limited to a fair comment on the evidence of silence raised by the defendant. See Ricardo, 756 So. 2d at 216…
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Davenport v. State, 858 So. 2d 355 (Fla. 1st DCA 2003)…ause the trial court failed to refute the appellant’s claim with record attachments, we reverse and remand for an evi-dentiary hearing or the further attachment of record portions that conclusively refute the appellant’s claim. See Ricardo v. State, 756 So. 2d 215 (Fla. 4th DCA 2000); Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995). AFFIRMED, in part, REVERSED, in part, and REMANDED, in part. ALLEN, DAVIS, and BENTON, JJ., CONCUR.…
Authorities Cited
- United States v. Robinson, 485 U.S. 25 (U.S. 1988)
- Wood v. State, 552 So. 2d 235 (Fla. 4th DCA 1989)