362 So. 2d 309 | Fla. Dist. Ct. App. | 1978
Dissenting Opinion
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
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 1969). I see no reason to further compound the problem by allowing its admission before
I would reverse and remand for a new trial.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See footnote 4 in Greenfield, supra which states:
“No issue is made herein about the postural sequence in which the evidence came in. That is, the evidence came in during the state’s case in chief before there was any evidence from the appellant as to his insanity. But no objection was made at the time. So, by objecting to prosecutorial comments thereon during summation, the appellant is in no different position than he would have been in had such evidence been introduced in rebuttal, when it would have been, as we hold here, proper”.
Lead Opinion
AFFIRMED.