Smith v. State

342 So. 2d 990 (1977)

Samuel SMITH, Appellant,
v.
The STATE of Florida, Appellee.

No. 75-1890.

District Court of Appeal of Florida, Third District.

February 1, 1977.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PER CURIAM.

Defendant, Samuel Smith, appeals his conviction of grand larceny following a jury trial.

On appeal Smith urges as reversible error the trial court's denial of defense motions for curative instructions and mistrial upon the commenting of his right to remain silent by the prosecuting attorney in opening argument and a prosecution witness during the trial. We find this point is well taken.

The prosecutor in his opening statement to the jury commented that when the arresting officer approached the defendant, who was pushing a cart filled with tools, he asked the defendant what he had in the cart and the defendant did not respond to the question. The officer placed the defendant under arrest, read him Miranda warnings and again asked him about the tools. The defendant replied he wasn't going to tell him anything. During the trial the arresting officer testified to the foregoing and the fact that after defendant was arrested and given his Miranda warnings, defendant stated he knew his rights and was not going to say anything. Defense counsel in each instance objected to the remarks and made motions for curative instruction and/or mistrial. The objections and the motions were denied.

It is now established that any comment upon the defendant's remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the doctrine of harmless error. Bennett v. State, 316 So. 2d 41 (Fla. 1975); Davis v. State, 342 So. 2d 987 (Fla.3d DCA, released this same day).

We, therefore, reverse defendant's conviction and remand the cause to the circuit court for a new trial.

Reversed and remanded.