RALPH YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ralph Young appealed his conviction for escape after police apprehended him during a break-in and he subsequently escaped lawful custody. The court reversed the escape conviction due to judicial comments on his failure to testify coupled with an instruction on his right to testify, but affirmed the firearms convictions while vacating the concurrent sentencing.
The court held that the trial judge's statements coupled with the jury instruction were tantamount to a judicial comment on the failure of the defendant to testify, constituting reversible error. The court also held that consecutive sentences were improper since both firearms offenses were facets of a single crime.
[1] A trial court's comments to a defendant, made in the presence of the jury, regarding the defendant's decision not to testify, when coupled with an instruction that emphas…
[2] A defendant's choice not to testify in his own behalf cannot be commented upon by the court in a manner that draws the jury's attention to that silence.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the court's inappropriate instruction, coupled with these statements, does constitute reversible error. There can be little question that the remarks made by the judge in a jury trial are given great weight by the jury — greater than the remarks of other participants in the trial.”
Establishes the legal principle that judicial comments on a defendant's failure to testify, when combined with jury instructions, constitute reversible error due to the weight juries give to judicial statements.
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Join FLexlaw to unlock all legal intelligenceYoung was apprehended by police during a break-in and subsequently escaped from lawful custody. When recaptured, he was carrying a pistol in his pants…
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BOARDMAN, Judge.
Appellant, Ralph Young, was apprehended by police during a break-in and, subsequently, escaped from lawful custody, when he was recaptured he was carrying a pistol in a pants pocket. He was tried separately for escape and the firearm counts: possession of a firearm by a convicted felon and carrying a concealed firearm. On November 18, 1974, he was tried for escape. Appellant chose to represent himself. After the state' rested the court addressed appellant in the presence of the jury.
THE COURT: At this time, Mr. Young, you can put on your case. If you would like to get under oath and explain you can do that at this time. You don’t want to tell the jury anything?
MR. YOUNG: No. THE COURT: At this time the defendant chooses not to put on any testimony so at this time we will have the arguments of counsel. . . . The court gave the following instruction without objection:
A defendant may become a witness and testify in his own behalf; and in considering his testimony and the weight and credibility which should be given it, you should consider it just as you would the testimony of any other witness.1
Appellant argues that the court’s statements were comments on his failure to testify and, as such, constituted reversible error. While it would have been more appropriate for the statements addressed to the defendant to have been made out of the hearing of the jury, we do not believe that, considered alone, they would constitute reversible error. We do hold, however, that the court’s inappropriate instruction, coupled with these statements, does constitute reversible error. There can be little question that the remarks made by the judge in a jury trial are given great weight by the jury — greater than the remarks of other participants in the trial. In our judgment, the said instruction only served to emphasize and focus the jury’s attention on the statements made by the judge. Undoubtedly these statements were a well-intentioned attempt to insure the defendant’s understanding of his constitutional rights and trial procedures. However, under these particular circumstances the complained-of instruction coupled with the trial judge’s statements were tantamount to a judicial comment on the failure of the defendant to testify. See Diecidue v. State, Fla.1961, 131 So. 2d 7.
In a second jury trial appellant was convicted of possession of a firearm by a convicted felon and carrying a concealed firearm; He received a 15-year sentence for possession of a firearm by a felon and a consecutive 5-year sentence for carrying a concealed firearm. Appellant contends separate sentences were improper since the acts were facets of a single crime. We agree. McPhall v. State, Fla.App. 4th, 1975, 320 So. 2d 867, is controlling.
Accordingly, we reverse the judgment and sentence on the escape conviction and remand for new trial. We affirm the judgment as to the convictions of possession of a firearm by a convicted felon and carrying a concealed firearm, but vacate the sentence for carrying a concealed firearm.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED for further proceedings consistent with this opinion.
McNULTY, C. J., and SCHEB, J., concur. . Florida Standard Jury Instructions in Criminal Cases, 2.12(g).
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Citator
Cited By
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Theodis McCLAIN v. State, 353 So. 2d 1215 (Fla. 3d DCA 1977)…ile the criminal procedure rule admonishes against such a comment by a prosecutor, it is equally impermissible for it to be made before a jury by the judge who is presiding at the trial. Diecidue v. State, 131 So. 2d 7, 9 (Fla.1961); Young v. State, 330 So. 2d 235 (Fla. 2d DCA 1976). In fact, the degree of prejudice to an accused from such a prohibited comment is greater when it is made by the judge than when made by the prosecutor, due to the great weight which jurors tend to give any such comment when made…
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Dotson v. State, 339 So. 2d 693 (Fla. 2d DCA 1976)…ant to Fla.R.Crim.P. 3.850, contending that the sentence imposed for carrying a concealed firearm should be vacated since that charge was a facet of a single transaction.1 The trial court denied the motion. We reverse on authority of Young v. State, 330 So. 2d 235 (Fla.2d DCA 1976).2 The sentence on the charge of carrying a concealed firearm is therefore vacated; the remainder of the sentence is affirmed. HOBSON, A. C. J., and BOARDMAN, J., concur. . Appellant also contends that the sentence imposed for car…
Authorities Cited
- Diecidue v. State, 131 So. 2d 7 (Fla. 1961)
- In re Est. of M. May Robertson v. Harvey, 131 So. 2d 7 (Fla. 1961)
- McPHALL v. State, 320 So. 2d 867 (Fla. 4th DCA 1975)