Summary
In Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), it was held that it is improper to allow testimony concerning an accused's silence after Miranda warnings. It is fundamental, constitutional error incapable of being rendered harmless by later events.
Summary of this case from Paulen v. StateOpinion
No. 75-885.
July 16, 1976.
Appeal from the Broward County Circuit Court, W. Herbert Moriarty, J.
Richard L. Jorandby, Public Defender, and Daniel T. O'Connell, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., Miami and Ivan Chesler, Legal Intern, South Miami, for appellee.
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.