Summary
In Brannin v. State, 476 So.2d 245 (Fla. 1st DCA 1985), this court reached a similar result stating that "[t]he proper way to reserve jurisdiction over consecutive sentences is to enter an order reserving jurisdiction over one-half of the total [sentence]...."
Summary of this case from Johnson v. StateOpinion
No. AV-277.
September 24, 1985. Rehearing Denied October 29, 1985.
Appeal from the Circuit Court, Dixie County, L. Arthur Lawrence, Jr., J.
Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Brannin appeals his convictions and sentences for two counts of first degree murder, armed burglary, kidnapping and sexual battery. He contends, inter alia, that the trial court erred in denying his motion for mistrial made after a witness commented on his right to remain silent, and in retaining jurisdiction to review any parole orders during the first one-half of each of three consecutive sentences. We affirm in part and reverse in part.
A Florida Department of Law Enforcement agent testified at the trial of this cause that he advised Brannin of his constitutional rights and that Brannin refused to sign a waiver of those rights. Then, in response to a question by the prosecutor, the agent testified that Brannin "did not want to give a statement." An immediate objection and motion for mistrial was made, and after argument to the court the motion for mistrial was denied.
The agent's statement was an impermissible comment on the defendant's right to remain silent which at the time this appeal was taken was considered to be fundamental error. It could not be deemed harmless, and was per se grounds for reversal. Our Supreme Court has since adopted the harmless error test used in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) saying:
It makes no sense to burden our legal system with a new trial when the result will be the same. As the Supreme Court noted in Hasting, there can be no such thing as an error-free, perfect trial, and the constitution does not guarantee such a trial. 461 U.S. at 508-09, 103 S.Ct. at 1980. To insure that as fair a trial as possible is given, we adopt the harmless error test used in Chapman and Hasting. Therefore, an appellate court must inquire on review: Absent the comment on silence, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?State v. DiGuilio, 10 FLW 430, 432 (Fla. Aug. 29, 1985). The evidence of guilt in this case is so overwhelming and conclusive that it is impossible to conceive that a jury could have returned any verdict other than guilty. The error is therefore harmless and does not require reversal and retrial.
The trial court retained jurisdiction to review any parole orders issued during the first one-half of each of the two 90-year consecutive sentences and the first one-half of the 30-year consecutive sentence. The proper way to reserve jurisdiction over consecutive sentences is to enter an order reserving jurisdiction over one-half of the total. In this case, the total of the consecutive sentences is 210 years. We therefore modify the judgment and sentences to provide that jurisdiction to review any parole order is retained for 105 years.
We find no error in the remaining issues raised and the judgment and sentences, as modified, are AFFIRMED.
WIGGINTON, J., concurs.
NIMMONS, J., specially concurs.
I concur in Judge Thompson's opinion.
Even without the benefit of the Florida Supreme Court's recent decision in State v. DiGuilio, 10 FLW 430 (Fla. Aug. 29, 1985), (harmless error where evidence of guilt overwhelming), I would have still favored affirmance. Although not apparent from Judge Thompson's opinion, the defendant, Brannin, had already given a most incriminating statement and, in addition, had led the investigating officers to the location where he had hidden the shotguns used in committing the subject offenses. It was subsequent to such voluntary self-incriminating statement and acts that Brannin told the Florida Department of Law Enforcement agent that he did not wish to sign the waiver of rights form or to make any statements additional to those he had already made. Bennett v. State, 316 So.2d 41 (Fla. 1975) and Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976), relied upon by the appellant, are materially distinguishable.
In Bennett, a police officer testified that the defendant refused to sign a waiver of his Miranda rights. Unlike the instant case, there was no testimony that Bennett had already freely and voluntarily incriminated himself. In Lucas, the defendant, after making brief exculpatory statements to the effect that he had never met or seen the victim, stated that he did not want to talk to the investigating officer anymore. The Supreme Court held that Lucas was entitled to a mistrial after the police officer testified to the above. Again, however, the defendant in Lucas had not, as in our case, already incriminated himself. Indeed, the statement made by Lucas was exculpatory. I do not believe that the Bennett and Lucas line of cases are applicable to the situation with which we are confronted in the instant case. But I also agree with Judge Thompson's opinion that the evidence against Brannin, independent of that which he claims violated his rights against self-incrimination, was so overwhelming that it is clear beyond a reasonable doubt that the jury would have still returned verdicts of guilty.