VINCENT FARESE, A/K/A VINCENT SOMMA, APPELLANT (DEFENDANT),

v.

STATE OF FLORIDA, APPELLEE (STATE)

Fla. 1st DCA | 1976-03-23

No. X-71

McCORD, Acting C, J., and SMITH, J., concur.

328 So. 2d 548 Florida District Court of Appeal, First District (1976) Caution

Cited by 11 cases

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Holding

The court held that admitting testimony about a defendant's post-arrest silence, even after striking it and admonishing the jury, constitutes fundamental error requiring reversal.

Facts & Procedural History

During a trial for aggravated assault, the State elicited testimony from the arresting officer that the defendant remained silent after being arrested…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Right To Remain Silent Harmless Error Doctrine Mistrial Fundamental Error

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Opinion of the Court

MILLS, Judge.

Defendant was charged with aggravated assault and convicted by a jury as charged. He appeals from the judgment of conviction and sentence to the state prison. The issue which is determinative here is whether the trial court erred in refusing to declare a mistrial where the State adduced testimony that after defendant was arrested and given his constitutional rights, he remained silent. During the State’s direct examination of the arresting officer, the following occurred : “Q. Did you place him under arrest and advise him of his constitutional rights ?

A. Yes.

Q. Did Mr. Farese, after you had done this — did he ever make any statement to you ?

A. No, he did not.

Q. Nothing in the way of explanation or anything?

A. No, Sir.”

The defendant moved for a mistrial. It was denied.

However, the trial court did strike the testimony and admonished the jury to disregard the testimony. This was fundamental error. Comment on a defendant’s right to remain silent is a constitutional defect which requires reversal without regard to the doctrine of harmless error. Bennett v. State, 316 So. 2d 41 (Fla.1975). In fairness to the trial court, we point out that Bennett v. State had not been rendered at the time of its ruling, and that Bennett reversed this Court’s decision in Wright v. State, 251 So. 2d 890, which applied the harmless error doctrine. In addition, we would like to commend the Assistant Attorney General, who handled this case on appeal for the State, for his candor, sense of fair play and helpfulness to the Court.

Reversed and remanded for a new trial.

McCORD, Acting C, J., and SMITH, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Willinsky v. State, 360 So. 2d 760 (Fla. 1978)

…t the preliminary hearing. Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967); Bennett v. State, supra; Shannon v. State, supra; Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976); Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976); Farese v. State, 328 So. 2d 548 (Fla. 1st DCA 1976); Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976); Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Mansfield v. State, 338 So. 2d 857 (Fla. 3d DCA 1976) and Davis v. State, 342 So. 2d 987 (Fla. 3d DCA 1977). The decision…
Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977)

…a rights constitutes such a violation of his fundamental rights as to constitute error even in the absence of objections. Some decisions of the District Courts of Appeal have answered this question, "Yes, it is fundamental error:" Farese v. State, 328 So. 2d 548 (Fla. 1st DCA 1976) Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976) Weiss v. State, 341 So. 2d 528 (Fla. 3rd DCA 1977) Davis v. State, 342 So. 2d 987 (Fla. 3rd DCA 1977) Smith v. State, 342 So. 2d 990 (Fla. 3rd DCA 1977) Acee v. State, 330 S…
Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977)

…nt after being warned of his constitutional rights and obtained a negative answer from the officer. We must reverse upon the authority of Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So. 2d 41 (Fla.1975); Farese v. State, 328 So. 2d 548 (Fla. 1st DCA 1976); Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976); Shannon v. State, 335 So. 2d 5 (Fla.1976); Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976); Boyd v. State (Fla. 4th DCA…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.