Martin v. State, 75--885

Decision Date16 July 1976
Docket NumberNo. 75--885,75--885
Citation334 So.2d 841
PartiesMary Alice MARTIN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Daniel T. O'Connell, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., Miami and Ivan Chesler, Legal Intern, South Miami, for appellee.

PER CURIAM.

Defendant appeals a conviction for possession of a concealed weapon assigning as error denial of a motion for a mistrial following the state's eliciting of testimony concerning defendant's remaining silent after being arrested and being given Miranda warnings. The record reflects that during direct examination by the state, the arresting officer testified that after reading the defendant her Miranda rights, she remained silent, i.e. 'at that time she didn't make no statement'. It is our understanding from a reading of Bennett v. State, 316 So.2d 41 (Fla.1975), at page 44, that any comment upon defendant's right to remain silent is 'of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error.' See also Bostic v. State, 332 So.2d 349, Fourth District Court of Appeal, opinion filed May 14, 1976; United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Doyle v. Ohio, --- U.S. ---, 96 S.Ct. 2240, 49 L.Ed.2d 91, 44 LW 4902 opinion filed June 17, 1976. Moreover, Bennett v. State, supra, characterizes such comments as fundamental error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.

REVERSE AND REMAND.

MAGER, C.J., and WALDEN and ALDERMAN, JJ., concur.

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  • Tsavaris v. Scruggs
    • United States
    • Florida Supreme Court
    • March 17, 1977
    ...342 So.2d 990 (Fla. 3rd DCA 1977) Acee v. State, 330 So.2d 496 (Fla. 4th DCA 1976), Cert. denied, Fla., 339 So.2d 1172 Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976) Boyd v. State, 335 So.2d 834 (Fla. 4th DCA 1976) Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976) Carter v. State, 33......
  • Porter v. State
    • United States
    • Florida District Court of Appeals
    • March 7, 1978
    ...DCA 1976); Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976); Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967).2 Gillian v. State, -......
  • Willinsky v. State
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    • Florida Supreme Court
    • April 5, 1978
    ...hearing. Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Bennett v. State, supra; Shannon v. State, supra; Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976); Farese v. State, 328 So.2d 548 (Fla. 1st DCA 1976); Carter v. State, 335 So.2d ......
  • Sylvester v. State, 75-1652
    • United States
    • Florida District Court of Appeals
    • February 11, 1977
    ...41 (Fla.1975); Farese v. State, 328 So.2d 548 (Fla.1st DCA 1976); Bostic v. State, 332 So.2d 349 (Fla.4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla.4th DCA 1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Lucas v. State, 335 So.2d 566 (Fla.1st DCA 1976); Boyd v. State (Fla.4th DCA, Cas......
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