Summary
In Davis v. State, 356 So.2d 1252 (Fla. 4th DCA 1978), the facts were stated. The conviction on Count I for attempted trespass on a conveyance is now before us for review.
Summary of this case from Davis v. StateOpinion
No. 76-1723.
February 21, 1978. Rehearing Denied March 21, 1978.
Appeal from the Circuit Court, Broward County, Paul M. Marko, III, J.
Richard L. Jorandby, Public Defender, and Frank B. Kessler, Henry Prettyman, Asst. Public Defenders, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Charles A. Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.
Appellant was charged with attempted burglary of a motor vehicle contrary to Section 810.02(3), Florida Statutes (1975), and possession of burglary tools contrary to Section 810.06, Florida Statutes (1975). After a trial by jury appellant was convicted of attempted trespass and possession of burglary tools. Ostensibly appellate review is now sought of the judgment and sentence based upon two alleged errors of the trial court: 1) the trial court erred in allowing the State to adduce evidence that appellant chose to remain silent after being advised of his constitutional rights; and 2) the trial court erred in failing to grant a judgment of acquittal when the State failed to prove ownership of the vehicle in question as that ownership was alleged in the information.
If the conviction on Count I (attempted burglary of a motor vehicle) had been properly preserved for appeal, we would reverse the conviction on that count because the State failed to prove ownership of the motor vehicle as laid in the information, Salerno v. State, 347 So.2d 659 (Fla. 4th DCA 1977); Mitchell v. State, 317 So.2d 465 (Fla. 4th DCA 1975); Smith v. State, 96 Fla. 30, 117 So. 377 (1928). However, although both parties have treated this matter as involving an appeal from the conviction on both counts of the information, the record demonstrates that the appeal from the written judgment of conviction and sentence gives us jurisdiction only over Count II (possession of burglary tools).
The record reflects that the jury found appellant guilty of attempted trespass and possession of burglary tools. It is further evident that at sentencing in open court the trial judge sentenced appellant to five years in prison for possession of burglary tools and sixty days for the attempted trespass to run concurrent with the prison term. However, in reducing the judgment to writing the Court only adjudicated appellant guilty of Count II (possession of burglary tools) and sentenced appellant to five years in prison. No adjudication or sentence on Count I was provided for in the written judgment. Since the written judgment only adjudicated and sentenced appellant for the crime of possession of burglary tools, we have jurisdiction only to consider an appeal involving that count of the information.
During the course of the testimony of Officer Commello, the State inquired about Miranda warnings and any statements made thereafter by appellant. Commello testified that appellant told him how he happened to be at the scene of the crime but then he stated that "He [appellant] refused to answer any further question in there." Defense counsel objected and the Court sustained the objection and instructed the jury to disregard the question. This, incidentally, was the second comment upon appellant's refusal to answer any further questions. This is a clear violation of appellant's right to remain silent and we doubt the efficacy of the Court's instruction. Bennett v. State, 316 So.2d 41 (Fla. 1975); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967).
Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial on Count II of the information.
REVERSED AND REMANDED.
ANSTEAD, J., concurs.
CROSS, J., dissents, with opinion.
ON PETITION FOR REHEARING
On February 21, 1978, we issued an opinion in this case reversing Petitioner's conviction of possession of burglary tools, pursuant to Count II of the information.
In said opinion we pointed out that appellant was also appealing from a conviction of attempted trespassing, pursuant to Count I of the Information and from our study of the record the conviction on that Count was subject to reversal. However, since the record contained no written judgment and sentence for the conviction on Count I we had noted that we had no jurisdiction to review the judgment and sentence on that Count.
By Petition for Rehearing appellant points out that, subsequent to the issuance of our opinion, on February 28, 1978, the trial judge entered a judgment and sentence on Count I, nunc pro tunc to July 23, 1976. Petitioner seeks review of that judgment and sentence now by way of Petition for Rehearing.
Although the suggestion that we review the February 28th, 1978, judgment and sentence on Count I is tempting because it would be expeditious to do so, we decline to because that judgment and sentence can not be reviewed by this court until a notice of appeal has been filed. Accordingly, in order to obtain a review of the February 28, 1978, judgment and sentence Petitioner should file a new notice of appeal within thirty (30) days from the date of that judgment and sentence.
Accordingly, the Petition for Rehearing is denied.
ALDERMAN, C.J., and CROSS, J., concur.
I respectfully dissent.
Although the complained-of error did impinge on the accused's right to remain silent, it is clear that such error no longer requires automatic reversal of an adjudication of guilt. See Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977). See also Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). After carefully reviewing the record, including the numerous inculpatory statements made by appellant after he was given the Miranda warnings, I am convinced that the reference to the accused's refusal to answer any further questions did not prejudice his right to receive a fair trial in any way. See Wythers v. State, supra.
Accordingly, I would affirm the judgment.