FRANK A. TOTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that mentioning a defendant's withdrawn guilty plea at trial is prejudicial and constitutes reversible error.
During a criminal trial, a state witness mentioned that the defendant had previously pleaded guilty to the charge, although that plea had been withdra…
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HOBSON, Acting Chief Judge.
In this appeal from a judgment and sentence to ten years in the state prison, Toth claims that he was denied a fair and impartial trial in the court below.
On February 13, 1973, after RCrP 3.-170(f), 33 F.S.A., had become effective, Toth changed his plea of not guilty to guilty of breaking and entering with intent to commit grand larceny. On April 30, 1973, Toth was permitted to withdraw his guilty plea, and trial was set on his plea of not guilty.
During the trial, in answer to a question by the prosecuting attorney regarding the reason for the return of the evidence to the owner, a witness for the state replied that they had received a court order from the state attorney’s office that Mr. Toth had pled guilty to the charge. Defense counsel immediately objected to the remark and stated that the statement was very prejudicial to his client. The lower court overruled the objection without striking the remark or instructing the jury to disregard it.
Rule 3.170(f) of the Rules of Criminal Procedure provides, in part:
“The fact that a defendant may have entered a plea of guilty and later withdrawn said plea, may not be used against him in a trial of that cause.”
The mention of the withdrawn guilty plea was highly prejudicial to Toth. Defense counsel timely objected to the re mark, and was entitled to have it cured. The lower court erred in overruling the objection.
We have reviewed the other points raised by appellant and find them to be without merit.
Reversed and remanded for a new trial.
McNULTY and BOARDMAN, JJ., concur.
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Lawson v. State, 304 So. 2d 522 (Fla. 3d DCA 1974)…ial. We think that after the witness had mentioned the guilty verdict in a void conviction, the prejudicial effect in the minds of the jury could not be removed. See, Minturn v. State, Fla.App.1962, 136 So. 2d 359; cf., Toth v. State, Fla.App.1974, 297 So. 2d 53; Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Beto v. Stacks, 408 F. 2d 313 (5th Cir. 1969). Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are reversed and the cause is re…
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Palmer v. State, 486 So. 2d 22 (Fla. 1st DCA 1986)…mony was indelibly prejudicial to appellant, since this testimony could not reasonably be interpreted by the jury as a statement of fact known to Branch. In this regard, we distinguish the Second District Court of Appeal’s decision in Toth v. State, 297 So. 2d 53 (Fla. 2d DCA 1974), as involving a situation where the witness unequivocally testified as a matter of fact that he had received an order from the state attorney’s office that Toth had already pled guilty to the charge for which he was on trial. Sinc…