Fussell v. State ( 1983 )

436 So. 2d 434 (1983)

Donnie FUSSELL, Appellant,
v.
The STATE of Florida, Appellee.

No. 82-1898.

District Court of Appeal of Florida, Third District.

August 30, 1983.

Bennett H. Brummer, Public Defender, and Kathleen G. Gallagher, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Penny Hershoff Brill, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

PER CURIAM.

During voir dire examination, the prosecutor asked a prospective juror, "Does it bother you that a 14 year old girl is going to be the victim in this case, it is going to be her word against his word?" While the question generally represented the projected evidence in the case, (which consisted of the victim's testimony pitted against that of the defendant's admissible confession) the question nonetheless constituted a comment upon the defendant's failure to testify in his own behalf. Smith v. State, 358 So. 2d 1137 (Fla. 3d DCA), dismissed, 364 So. 2d 892 (Fla. 1978).

For this reason, the defendant's conviction of attempted sexual battery is reversed and remanded for a new trial.