388 So. 2d 1042
Fla. Dist. Ct. App.
1980

Rehearing

ON PETITION FOR REHEARING

ORFINGER, Judge.

The State urges us to recede from our opinion in this case on the basis of Jenkins v. Anderson,-U.S.-, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), rendered shortly after the opinion sub judiсe was filed. The State’s argument is persuasive, but an analysis of Jenkins in the light of the facts in this case makes it inapplicаble.

Jenkins clearly holds that when a criminal defendant testifies, there is no constitutional violation in the use of pre-arrest silence to impeach his testimony at trial. In that case, two weeks elapsed between the murder and the defendant’s аrrest. At trial, defendant admitted the killing, but claimed self defense; on ‍​‌‌​‌‌​​‌‌‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌‍cross examination his testimony was impeached by quеstions which elicited the information that he had not reported the incident to the police nor claimed self defense prior to his arrest.

*1043There are statements in Jenkins which would lead one to believe that once a defendant elects to testify, his credibility may be attacked on cross examination in the same manner as would the testimony of any witness.1 If ascеrtaining the truth is a relevant function of a court of justice (as it must be), it would seem that a defendant’s silence at any timе when a reasonably prudent person would speak up would be a proper subject of cross-examinаtion once a defendant elects to testify, because it does go to the question of the credibility of his testimony and it is the type of question properly presented to a non-defendant witness. This position gains support from thе approval and re-affirmance by the majority of the Jenkins court of the case of Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where at a second trial following a jury deadlock, the prosecutor was permitted to impeach the defendant’s testimony by showing that he did not testify at the first trial. Obviously thе first trial was a post — arrest situation.

However, notwithstanding its support of Raffel, the Supreme Court reaffirms Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), with this language:

Only in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant receivеd the warnings required by Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 1624-1627, 16 L.Ed.2d 694 (1966), when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the ‍​‌‌​‌‌​​‌‌‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌‍defendant’s сredibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that thе prosecutor’s actions were permissible, but we concluded that “the Miranda decision compels.rejection of the State’s position.” Id., 426 U.S., at 617, 96 S.Ct., at 2244. Miranda warnings inform a person that he has the right tо remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, “it does not comport with due process to permit the prosecution during the trial to call attention to his silеnce at the time of arrest and to insist that because he did not speak about the facts of the case аt that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.” Id., at 619, 96 S.Ct., at 2245, quoting United States v. Hale, 422 U.S., at 182-183, 95 S.Ct., at 2139-2140 (WHITE, J., cоncurring in judgment). In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamеntal unfairness present in Doyle is not present in this case.

Jenkins, 100 S.Ct. at 2130.

In a case decided a week after Jenkins, the Supreme Court again affirmed Doyle, holding that while a defendant who testifies may not be impeached by post-arrest silence after receiving Miranda warnings, his testimony may be impeached by prior ‍​‌‌​‌‌​​‌‌‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌‍inconsistent statements, since in making the *1044statement he was not exercising his constitutional right to remаin silent.2 Anderson v. Charles,-U.S.-, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).

While the State urges us to hold that the silence here is pre-arrest, the circumstances make it impossible to so hold. Defendant was stopped, searched and arrestеd in less than fifteen minutes from the time the crime occurred. He was placed under arrest and read his Miranda rights immediately аfter the search revealed the envelope containing the money taken in the robbery, so there was hardly any opportunity to tell the police officers anything between the time the envelope was discovered and his arrest. He was in a custodial situation at all times.

For the reasons expressed here, we adhere tо the original opinion herein, and the Petition for Rehearing is

DENIED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

Notes

. For example: “In determining whether a constitutional right has been burdened impermissi-bly, ‍​‌‌​‌‌​​‌‌‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌‍it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, 412 U.S., at 32, and n. 20, 93 S.Ct., at 1985, and n. 20. Attempted impeachment on cross-examination ' of a defendant, thе practice at issue here, may enhance the reliability of the criminal process. Use of such impeаchment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, ‘[t]he interеsts of the other party and regard for the function of the courts of justice to ascertain the truth become rеlevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’ Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).” 100 S.Ct. at 2129.

. See also, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), where a defendant’s testimony was held properly impeached by a prior inconsistent stаtement taken in violation of his Miranda rights.



Lead Opinion

ORFINGER, Judge.

Appellant, charged with the crime of robbery with a firearm, was convicted after a jury trial. When he testified in his own defense that someone else had left the stolen articles in his car, a man he hаd met that evening, the prosecutor asked him:

Q: Did you tell the police officers that when they stopped you аnd told you about the robbery?
A: No. I didn’t say nothing.

Appellant’s objection and motion for mistrial were denied.

The question concerning appellant’s silence when detained by the police was constitutionally ‍​‌‌​‌‌​​‌‌‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​‌‌​​‌‌​‌​‌‌​‌‍prohibited, and constitutes reversible error without regard to its prejudicial effect. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L. R.3d 974 (1966); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977).

The objеction was proper and the motion for mistrial should have been granted. Clark v. State, 363 So.2d 331 (Fla.1978); Harris v. State, 381 So.2d 260 (Fla. 5th DCA 1980). Appellant’s conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.