340 So. 2d 1191 | Fla. Dist. Ct. App. | 1976
Lead Opinion
In light of the Supreme Court of Florida’s recent decisions in Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975), and this court’s decisions in Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), and Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976), the testimony elicited during direct examination by the State reflecting the defendant’s silence after his arrest and Miranda warnings constituted fundamental reversible error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
Dissenting Opinion
(dissenting):
I do not believe that the cases cited in the majority opinion are controlling in this case. Appellant was charged with possession of a stolen motor vehicle. One of the issues at the trial was whether appellant at the time of arrest was under the influence of heroin. The prosecutor and defense counsel both questioned the arresting officers concerning appellant’s appearance and actions at the time of his arrest relating to symptoms or signs of drug intoxication. The testimony concerning appellant’s silence was not a comment on appellant’s silence in the face of an accusation of guilt or direct inquiry as to whether the appellant committed the crime as charged. It related to appellant’s physical condition which was relevant to the issue of whether appellant was under the influence of heroin.
I would affirm.
