175 So. 2d 586
Fla. Dist. Ct. App.
1965
175 So.2d 586 (1965)

Fred C. BURSE, Appellant,
v.
STATE of Florida, Appellee.

No. 64-893.

District Court of Appeal of Florida. Third District.

June 1, 1965.

Rоbert L. Koeppel, Public Defender, and Philip A. Hubbart, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

*587 Before TILLMAN PEARSON, CARROLL and SWANN, JJ.

CARROLL, Judge.

This appeal is from an order summarily denying a petition for relief ‍‌​​‌​​‌​‌​​‌​‌​‌​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌‍under Criminal Procedure Rule 1, Ch. 924 F.S.A. Appendix.

Appellant and one Henry T. Tolliver were tried together in the criminal cоurt of record in Dade County and the jury declared them guilty of third degree murder. Judgment was entered and each was sentenced to be confined in the state penitentiary for a period of 15 years.

On a timely appeal taken by the defendant Tolliver, we reversed the judgment as to him and remanded for new trial, holding that certain statеments made by the prosecuting attorney in his closing argument amounted to comment on the failure of the defendants 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 аppellant, who took no appeal, filed his petition under Rule ‍‌​​‌​​‌​‌​​‌​‌​‌​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌‍1 four years after judgment and while serving the sentence.

The question which this appeal presents is whether this established error which if appealed could have brought reversal and an order for new trial, was properly rejected by the trial court as a grоund for relief under Rule 1, under the general proposition that errors which may be presented on appeal may not be the basis for collateral attack when appeal was not taken,[1] or whether a рrosecutor's comment on failure of the defendant to testify amounts to a denial of due process and of a fair trial such as to render the judgment subject to collateral attack.[2] We hold the latter is applicable here.

The statutory inhibition to commеnt by the prosecutor on the failure of a defendant to testify in his own behalf in a criminal trial is a protection against self-incrimination. It is a constitutionally guaranteed right, the ‍‌​​‌​​‌​‌​​‌​‌​‌​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌‍infringement of which amounts to a want of due proсess of law and denial of a fair trial, and where it can be shown to have occurred it may be the basis for сollateral attack of the judgment by petition under Rule 1.

In Rowe v. State, 87 Fla. 17, 98 So. 613, the Supreme Court of Florida said that such comment by a prosecutor on failure of a defendant to testify in his own behalf deprives him "of his constitutional right to a fair and impartial trial." And in Gordon v. State, Fla. 1958, 104 So.2d 524, 540, in discussing this protection to a criminal defendant against self-incrimination, as guаranteed by Section 12 of the Declaration of Rights of the Florida Constitution, 25 F.S.A., and the statute, § 918.09, Fla. Stat., F.S.A., the Supreme Court said: "* * * We have throughout the years consistently adhered to the proposition that this is a binding and obligatory rеstriction placed on prosecuting officers as an aspect of due process in order to рreserve to defendants the full measure of their constitutional privilege against self-incrimination." That the Suprеme Court has regarded such comment as amounting to a denial of a fair trial is shown by holdings that it is ground for reversal оn appeal though no objection was made thereto at trial, and by holding that the injury is such that efforts of the triаl judge to explain it away or to caution the jury against its influence will not eradicate its adverse effeсt. Thus, further *588 in the opinion in Gordon v. State, supra ‍‌​​‌​​‌​‌​​‌​‌​‌​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌‍(at p. 540) the Supreme Court said:

"Since Rowe v. State, 87 Fla. 17, 98 So. 613, this court has been aligned with the courts of other states which hold that when the prosecuting officer violates this rule, the trial becomes infected with еrror even though no exception is taken at the time and despite the fact that the trial judge might immediately rebuke the prosecutor for the violation. * * * Immediately there is created in the mind of the average juror аn ill-founded and prohibited prejudice which cannot be erased or eradicated either by apolоgy or by judicial admonition. Barnes v. State, Fla. 1951, 58 So.2d 157. As so aptly described by Mr. Chief Justice Terrell in Carlile v. State, 129 Fla. 860, 176 So. 862, 864, such a prеjudice `clings to the mind like a tattoo on the epidermis'. Ordinarily improper remarks of counsel to the jury cаn be remedied by appropriate instructions by the trial judge. Consequently under ordinary circumstances such inaрpropriate remarks will not be reviewed by an appellate court unless timely objection is made ‍‌​​‌​​‌​‌​​‌​‌​‌​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌‍in the lower court. This rule, however, is subject to the exception that if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence then on appeal they may be considered as error even in the absence of an objection in the trial court. Carlile v. State, supra."

Recently the guarantee against self-incrimination in the federal sphere, as provided fоr in the Fifth Amendment to the Constitution of the United States, was made applicable to the states (Malloy v. Hogan, (1964) 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653). And subsequently the Supreme Court of the United States held that comment by a prosecutor on a defendant's refusal tо testify in his own behalf, in a state criminal trial, violates the Fifth Amendment of the federal Constitution in its guarantee against sеlf-incrimination. Griffin v. California (1965), 85 S.Ct. 1229.

There is no need, after remand, for a further hearing to determine whether the prosecutor commented at the trial on failure of this and the other defendant to testify in their own behalf, becausе the fact that such comment was made, and its effect, were established on the appeal taken by thе defendant Tolliver.

Accordingly, the order denying appellant's petition under Rule 1 is reversed, and the cause is remanded with directions to grant the petition and order a new trial.

NOTES

Notes

[1] Harper v. State, Fla.App. 1965, 168 So.2d 325; Lambert v. State, Fla.App. 1965, 169 So.2d 374; United States v. Walker, 2 Cir.1952, 197 F.2d 287, 288; Kyle v. United States, 2 Cir.1959, 266 F.2d 670, 672, cert. denied 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109.

[2] French v. State, Fla.App. 1964, 161 So.2d 879; United States v. Sobell, 2 Cir.1963, 314 F.2d 314, 322-323, cert. denied 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077. Cf. Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982; Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.