DENNIS KELLERMAN A/K/A NATIVIDAD BARRON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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CARROLL, CHARLES (Ret.) Associate Judge. —,
This appeal is by the defendant from conviction of involuntary sexual battery by threatening to use force of violence likely to cause serious personal injury.
Citing and relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Bennett v. State, 316 So. 2d 41 (Fla.1975); Shannon v. State, 335 So. 2d 5 (Fla.1976), appellant contends his conviction should be reversed because of the attempt of the prosecutor to impeach his exculpatory story, related in his testimony at trial, on cross-examination by questioning him as to whether he had related that story to the police officers after arrest and being warned of his Miranda rights. In this case there was no objection thereto, as there was in Doyle, also it was disclosed that the defendant had talked to the officers after arrest, relating other matters. In the circumstances of this case the decisions relied on by the appellant are not such as to prompt reversal. See: Clark v. State, 336 So. 2d 468 (Fla. 2nd DCA 1976).
Judgment affirmed.
PEARSON, J., dissents.
NATHAN, Judge,
concurring' specially.
I agree that the judgment below should be affirmed, but wish to add that, in my opinion, the primary basis for affirmance is that this case simply does not present an issue of deprivation of fifth and fourteenth amendment rights. The defendant in this case did not invoke his right to remain silent. He freely conversed with the police officer who brought him to the area in which the victim was waiting for identification. This fact was brought out by the defense in cross examination of the officer. When the prosecution cross examined defendant, the objective was to show that the story defendant told at trial was different from his earlier statements. The effect of this cross examination was not to deprive defendant of any constitutional right. Cf. Morgan v. State, Fla. 3d DCA, opinion filed December 6, 1977. (The crucial aspect of the challenged testimony was that it was not elicited to show defendant’s assertion of her right to remain silent.)
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Ragland v. State, 358 So. 2d 100 (Fla. 3d DCA 1978)…elieve that comment, upon the failure to answer a single question was violative of appellant’s constitutional right, when said constitutional right was not invoked. See Williams v. State, 353 So. 2d 588 (Fla. 3d DCA 1977); Kellerman v. [*101] State, 353 So. 2d 901 (Fla. 3d DCA 1977); Miller v. State, 343 So. 2d 1292 (Fla. 3d DCA 1977); see also United States v. Fairchild, 505 F. 2d 1378 (5th Cir. 1975). Accordingly, appellant’s conviction and sentence are affirmed. Affirmed.…
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Hayes v. State, 400 So. 2d 519 (Fla. 3d DCA 1981)…d v. State, 358 So. 2d 100 (Fla. 3d DCA 1978), cert. denied, 365 So. 2d 714 (Fla. 1978). A crucial aspect of the testimony challenged herein is that it was not elicited to show defendant’s assertion of his right to remain silent. Kellerman v. State, 353 So. 2d 901 (Fla. 3d DCA 1977) (Nathan, J. specially concurring), aff’d on remand, 366 So. 2d 824 (Fla. 3d DCA 1979). No reversible error is shown. It is undisputed that when defendant was sentenced on January 25, 1980 the trial court did not mention retaining…
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Kellerman v. State, 366 So. 2d 824 (Fla. 3d DCA 1979)…PER CURIAM. On consideration of a petition for certio-rari to review this court’s judgment affirming a conviction of the defendant below [Kellerman v. State, 353 So. 2d 901 (Fla. 3d DCA 1977)], the Supreme Court of Florida, 366 So. 2d 882 entered an order granting certiorari and remanding the cause to this court for further proceedings consistent with the Supreme Court’s recent decision in Clark v. State, 363 So. 2d 33…1 / 2
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- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)