233 So. 2d 641 | Fla. Dist. Ct. App. | 1970
The only arguable question presented on this appeal is whether Davis was immune from this prosecution for larceny after the prosecutor interrogated him, on Davis’ motion for an order declaring him to be insolvent, about the disposition of funds belonging to estates administered by Davis. Counsel for defendant sought to inquire whether the court’s ruling that the prosecutor could ask about these funds constituted an instruction that Davis “must, in fact, answer the questions.” The judge replied that it was not the court’s instruction that he answer any question in the proceeding. Counsel said, “But if he doesn’t, then, of course, the motion will be denied.” The judge replied, “I think that that’s probably a fair statement, but I don’t think in any— I don’t think in any way does this operate as any — ” whereupon the defendant asked the prosecutor, “What did you ask me, Mr. Oldham?” “You ready to answer questions, Mr. Davis?” “Yes.” And on he talked, obviously thinking himself immune.
He was mistaken. We do not condone the suggestion implicit in the prose
Appellant relies on State v. Dayton, Fla.App. 1968, 215 So.2d 87. In that case the Third District Court of Appeal held that immunity attached where the person under investigation executed a waiver of immunity after being informed of a provision of the Code of Metropolitan Dade County providing that a county employee who refuses to waive immunity will lose his position and another provision purporting to fine such a person as much as $1,000. The defendant in that case asserted that he knew of those provisions and “waived” immunity under their compulsion. Garrity v. New Jersey, 1967, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, holds that a state cannot compel a public employee to waive Fifth Amendment rights at the cost of his job if he refuse. Therefore, a coerced waiver is invalid. This case is different. The defendant was a lawyer, a justice of the peace and should have been aware that the trial judge was attempting to clarify his position. Had Davis allowed him to conclude his remarks on the subject he might have understood the error of his position. But Davis jumped eagerly into the testimony about the offenses charged, which was properly excluded from the trial before another judge, and in the face of warning that he was not offered immunity testified.
Affirmed.