Opinion
No. 75-624.
July 9, 1976. Rehearing Denied August 27, 1976. Order Vacating Denial of Rehearing September 13, 1976.
Appeal from Circuit Court, Orange County; Peter M. deManio, Judge.
Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
CROSS, J., and GALE, JOHN, Associate Judge, concur.
MAGER, J., dissents, with opinion.
A review of the record reflects testimony by the arresting officer which can only be characterized as commenting on defendant's exercise of his right to remain silent constituting fundamental reversible error. Bennett v. State, 316 So.2d 41 (Fla. 1975); Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967). Although no objection was made the trial court perceptibly recognized the gravity of the matter and commendably proceeded to preserve defendant's constitutional right to remain silent by admonishing the jurors in that respect. However, in my view the error was of such constitutional proportion that neither objection nor admonition could correct. Gordon v. State, 104 So.2d 524 (Fla. 1958). Accordingly, I would reverse and remand for a new trial.
ORDER
ORDERED, sua sponte, this Court's August 27, 1976 Order denying Appellant's July 22, 1976 Petition for Rehearing is hereby vacated, and further
ORDERED, that said Appellant's Petition for Rehearing shall remain under consideration until further Order of this Court.