SAMUEL SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Any comment on a defendant's silence or refusal to testify is an error of constitutional dimension requiring a new trial.
The prosecutor commented in opening argument that the defendant remained silent when asked about tools. A witness testified that the defendant invoked…
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PER CURIAM.
Defendant, Samuel Smith, appeals his conviction of grand larceny following a jury trial.
On appeal Smith urges as reversible error the trial court’s denial of defense motions for curative instructions and mistrial upon the commenting of his right to remain silent by the prosecuting attorney in opening argument and a prosecution witness during the trial. We find this point is well taken.
The prosecutor in his opening statement to the jury commented that when the arresting officer approached the defendant, who was pushing a cart filled with tools, he asked the defendant what he had in the cart and the defendant did not respond to the question. The officer placed the defendant under arrest, read him Miranda warnings and again asked him about the tools. The defendant replied he wasn’t going to tell him anything. During the trial the arresting officer testified to the foregoing and the fact that after defendant was arrested and given his Miranda warnings, defendant stated he knew his rights and was not going to say anything. Defense counsel in each instance objected to the remarks and made motions for curative instruction and/or mistrial. The objections and the motions were denied.
It is now established that any comment upon the defendant’s remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the doctrine of harmless error. Bennett v. State, 316 So. 2d 41 (Fla.1975); Davis v. State, 342 So. 2d 987 (Fla.3d DCA, released this same day).
We, therefore, reverse defendant’s conviction and remand the cause to the circuit court for a new trial.
Reversed and remanded.
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Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977)…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 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 (F…
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Porter v. State, 356 So. 2d 1268 (Fla. 3d DCA 1978)…se the silence of an accused at the time of his arrest to impeach his explanation subsequently offered at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So. 2d 987 (Fla. 3d DCA 1977); Smith v. State, 342 So. 2d 990 (Fla. 3d DCA 1977); Thomas v. State, 342 So. 2d 991 (Fla. 3d DCA 1977). “The prosecutor’s cross-examination of the defendant concerning the defendant’s pretrial silence was improper and, accordingly, defendant’s convictions and sentences are revers…
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Dereck Cunningham v. State, 404 So. 2d 759 (Fla. 3d DCA 1981)…405 So. 2d 997 (Fla. 3d DCA 1981); Watkins v. State, 363 So. 2d 575 (Fla. 3d DCA 1978); Martin v. State, 356 So. 2d 320 (Fla. 3d DCA 1977); Thomas v. State, 342 So. 2d 991 (Fla. 3d DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977); Smith v. State, 342 So. 2d 990 (Fla. 3d DCA 1977); Fla.R. Crim.P. 3.250. We find a second and independent grounds .for reversal in the failure to instruct the jury on the maximum and minimum sentences. In Tascano v. State, 393 So. 2d 540 (Fla.1980), the Supreme Court held that t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Davis v. State, 342 So. 2d 987 (Fla. 3d DCA 1977)