Opinion
No. AH-317.
May 14, 1982.
Appeal from the Circuit Court, Duval County, Charles O. Mitchell, Jr., J.
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., Tallahassee, for appellee.
Under interrogation by the prosecutor, the law enforcement officer who gave appellant Miranda warnings improperly testified that the defendant refused to answer his questions. The timely motion for mistrial should have been granted. Clark v. State, 363 So.2d 331 (Fla. 1978). The prosecutor's subsequent cross-examination of appellant as to whether he had previously been arrested was conceded error which will be avoided on the necessary retrial. See Harmon v. State, 394 So.2d 121 (Fla. 1st DCA 1980). The court's refusal to separately charge the jury on the nature and weight of circumstantial evidence was not error, considering the deletion of that charge from Florida Standard Jury Instructions in Criminal Cases (1981 ed.) and the Supreme Court's explicit order approving that omission. In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, ___ So.2d ___, Nos. 57,734 and 58,799 (Fla. Apr. 16, 1981) [1981 FLW 305].
REVERSED and REMANDED for a new trial.
McCORD and BOOTH, JJ., concur.