Blakley v. State, No. 77-2076

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM; LETTS, J., and BLACK, SUSAN; DAUKSCH; DAUKSCH
• Citation: 362 So.2d 309
• Parties: Freddy Duane BLAKLEY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 77-2076
• Decision Date: 19 July 1978

Page 309

362 So.2d 309 Freddy Duane BLAKLEY, Appellant,
v.
STATE of Florida, Appellee. No. 77-2076. District Court of Appeal of Florida, Fourth District. July 19, 1978.
Rehearing Denied Sept. 20, 1978.

J. David Bogenschutz of Varon, Stahl, Kay & Roderman, P. A., Hollywood, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Benedict P. Kuehne and Charles A. Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

AFFIRMED.

LETTS, J., and BLACK, SUSAN, Associate Judge, concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge, dissenting:

I respectfully dissent. This is a case quite similar to Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976) both in its facts and the law.

On direct examination in the State's case in chief the prosecutor elicited from a policeman the testimony that the defendant had been advised of his rights under Miranda ¹ and that the defendant maintained his right not to give a statement. After the officer told the jury the defendant exercised his Miranda rights the attorney for the defendant objected and moved for a mistrial. In fact, throughout the questioning of the officer in regard to the Miranda warnings and the defendant's response, the defendant's attorney made objections and made a "continuing objection" at a point prior to the officer actually telling the jury the defendant refused to make a statement. The officer telling the jury that the defendant refused to give a statement after a Miranda warning is error. Bennett v. State, 316 So.2d 41 (Fla.1975). It is fundamental error, not requiring an objection. Paulen v. State, 352 So.2d 1205 (Fla. 4th DCA 1977).

However, like in Greenfield, supra, there is a twist to this case. In essence the defendant's refusal was introduced for the purpose of showing the defendant was "sane" at the time of the commission of the crime because he evidently understood a Miranda warning at the time of his arrest, shortly after the crime occurred. The testimony was introduced In anticipation of an insanity defense because the defendant had given notice of his intention to claim insanity and had pleaded not guilty by reason of insanity.

While I agree with the dissent of Judge Grimes in Greenfield, supra, I also dissent here because of the order of things. Let us assume the refusal of the accused to make a statement is admissible on the issue of insanity, as it was found to be in Collins v. State, 227 So.2d 538 (Fla. 3rd DCA...