Tolliver v. State, 61-5
| Decision Date | 12 October 1961 |
| Docket Number | No. 61-5,61-5 |
| Citation | 133 So.2d 565 |
| Parties | Henry T. TOLLIVER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Koeppel and Marco Loffredo, Miami, for appellant.
Richard W. Ervin, Atty. Gen. and Herbert P. Benn, Asst. Atty. Gen., for appellee.
Before CARROLL, BARKDULL and HENDRY, JJ.
Appellant, who was convicted of third-degree murder and sentenced to 15 years, seeks reversal of his conviction primarily because of remarks made by the prosecutor in his closing argument, which, by 'reference', tended to show that the appellant-defendant did not take the stand in his own defense, although he was sworn along with other witnesses in the presence of the jury. Said comments were within those prohibited by § 918.09, Fla.Stat.1959, F.S.A., being as follows:
At the conclusion of the arguments, the able trial judge made the following comment:
'The Court: I think perhaps your final summation showed a little bit of overzealousness. and I am wondering, if I let this case go to the jury, whether these defendants will get a fair and impartial trial. * * *'
Section 918.09, Fla.Stat.1959, F.S.A., reads as follows:
'Accused may make himself a witness.--In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury of court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.' [Emphasis added.]
This statute, or its predecessors have been a part of the law of this State since 1853, and affords an accused protection from any comment, either directly or indirectly, by the prosecution on his failure to take the stand in his own defense. This is so because if an accused does not take the stand and the State is permitted to comment on such failure in closing argument this, in effect, makes the accused a witness against himself, contrary to § 12 of the Declaration of Rights of the Florda Constitution, F.S.A. A review of the decisions of the appellate courts of this...
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Reddick v. State, 6551
...to testify in their own behalf, in violation of § 918.09, Fla.Stat., F.S.A., which interdicts such comment. See Tolliver v. State, Fla.App.1961, 133 So.2d 565. This appellant, who took no appeal, filed his petition under Rule 1 four years after judgment and while serving the '(1) The questi......
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Singleton v. State
...Fla.App.1961, 126 So.2d 152. 7 Or in calling attention to the fact that the defendant was sworn but did not testify, Tolliver v. State, Fla.App.1961, 133 So.2d 565. Or the defendant's failure to testify in other proceedings, such as preliminary hearing, habeas corpus, or a former trial, Hat......
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State v. Hodges, 62-765
...in Florida have reversed convictions for new trial due to any inroads into the statute's protection. See for example Tolliver v. State, Fla.App.1961, 133 So.2d 565, wherein a criminal conviction for a new trial for violation of the statute was ordered. The court said at page 'This statute, ......
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Matire v. Wainwright
...of defendant to make a statement to deputy sheriff impermissible); Milton v. State, 127 So.2d 460 (Fla.App.1961); Tolliver v. State, 133 So.2d 565 (Fla.App.1961), cert. denied, 139 So.2d 691 (Fla.1962). 7 On the relevant date, the only decisions in Florida on the subject had clearly held th......