Opinion
No. 76-79.
November 26, 1976.
Appeal from the Circuit Court, St. Lucie County, Wallace Sample, J.
Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
During examination of one of the arresting officers in the State's case in chief, the prosecutor elicited the testimony that, after being suitably cautioned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant was asked by the officer where he had obtained the envelope containing heroin which was taken from him by a search. The officer testified:
"He wouldn't say.
"Q. Did he say anything at all?
"A. Not at that time, no sir."
The prosecutor's examination constituted fundamental error prejudicing appellant's Fifth Amendment rights. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So.2d 41 (Fla. 1975); Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967).
REVERSED AND REMANDED for a new trial.
CROSS, J., and COBB, WARREN, Associate Judge, concur.