Rojas v. State

412 So. 2d 71 (1982)

Rafael ROJAS, Appellant,
v.
The STATE of Florida, Appellee.

No. 81-2571.

District Court of Appeal of Florida, Third District.

April 13, 1982.

Paul Morris and Stephen H. Rosen, Miami, for appellant.

Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.

Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

Adhering to this state's unequivocal rules that any reference before the jury to the defendant's declination to answer police questioning after being given Miranda warnings is constitutionally impermissible, see, e.g., Bennett v. State, 316 So. 2d 41 (Fla. 1975); Peterson v. State, 405 So. 2d 997 (Fla. 3d DCA 1981); Barnes v. State, 375 So. 2d 40 (Fla. 3d DCA 1979); and that a timely motion for mistrial directed to the reference is all that is required to make the error of the reference reversible without regard to consideration of its harm to the defendant when measured against the other evidence in the case, see, e.g., Clark v. State, 363 So. 2d 331 (Fla. 1978); Willinsky v. State, 360 So. 2d 760 (Fla. 1978); Shannon v. State, 335 So. 2d 5 (Fla. 1976); Bennett v. State, supra; Peterson v. State, supra (and cases collected therein); we reverse the defendant's conviction and remand the cause for a new trial.

Reversed and remanded.