MARY ALICE MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a conviction for possession of a concealed weapon because the state improperly elicited testimony about the defendant's post-Miranda silence, which constitutes fundamental constitutional error warranting reversal without harmless error analysis.
Comments on a defendant's post-Miranda silence constitute fundamental constitutional error requiring reversal without harmless error analysis.
[1] Testimony eliciting a defendant's post-Miranda silence constitutes fundamental constitutional error requiring reversal without harmless error analysis.
Previewing 1 of 1 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“any comment upon defendant's right to remain silent is 'of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error.'”
Court citing Bennett v. State to establish that such comments are fundamental error requiring automatic reversal.
The defendant was arrested and given Miranda warnings. During the state's direct examination, the arresting officer testified that after reading the d…
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PER CURIAM.
Defendant appeals a conviction for possession of a concealed weapon assigning as error denial of a motion for a mistrial following the state’s eliciting of testimony concerning defendant’s remaining silent after being arrested and being given Miranda warnings. The record reflects that during direct examination by the state, the arresting officer testified that after reading the defendant her Miranda rights, she remained silent, i. e. “at that time she didn’t make no statement”. It is our understanding from a reading of Bennett v. State, 316 So. 2d 41 (Fla.1975), at page 44, that any comment upon defendant’s right to remain silent is “of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error.” See also Bostic v. State, 332 So. 2d 349, Fourth District Court of Appeal, opinion filed May 14, 1976; United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed. 2d 99 (1975); Doyle v. Ohio, - U.S. -, 96 S.Ct. 2240, 49 L.Ed.2d 91, 44 LW 4902 opinion filed June 17, 1976. Moreover, Bennett v. State, supra, characterizes such comments as fundamental error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.
REVERSE AND REMAND.
MAGER, C. J., and WALDEN and ALDERMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Willinsky v. State, 360 So. 2d 760 (Fla. 1978)…976). We now hold that the harmless error rule is not applicable to disclosure of the accused’s silence at 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. Stat…
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Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977)…ate, 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 So. 2d 496 (Fla. 4th DCA 1976), Cert. denied, Fla., 339 So. 2d 1172 Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976) Boyd v. State, 335 So. 2d 834 (Fla. 4th DCA 1976) Williams v. State, 335 So. 2d 854 (Fla. 4th DCA 1976) Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976) Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976) Woulard v. Stat…
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Porter v. State, 356 So. 2d 1268 (Fla. 3d DCA 1978)…. 4th DCA 1977); Woulard v. State, 340 So. 2d 945 (Fla. 4th DCA 1976); Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976); Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976); Williams v. State, 335 So. 2d 854 (Fla. 4th DCA 1976); Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967). . Gillian v. State (Fla. 1st DCA 1977) (case no. FF-59, opinion filed August 18, 1977); Clark v. State, 336 So. 2d 468 (Fla…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976)
- United States v. Hale, 422 U.S. 171 (U.S. 1975)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976)
- Am. Emp'rs Ins. Co. & Snead Constr. Corp. v. J. H. Atkins & Assocs., Inc., 332 So. 2d 349 (Fla. 4th DCA 1976)