Summary
In Kinchen v. State, 432 So.2d 586 (Fla. 4th DCA 1983), the district court acknowledged conflict between Kinchen and Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla. 1983), and State v. Bolton, 383 So.2d 924 (Fla. 2d DCA 1980).
Summary of this case from State v. KinchenOpinion
No. 81-2133.
May 11, 1983. On Rehearing June 29, 1983.
Appeal from the Circuit Court, Broward County, Arthur J. Franza, J.
Richard L. Jorandby, Public Defender, and Richard Greene, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and James P. McLane, Certified Legal Intern, West Palm Beach, for appellee.
Upon review of the record we conclude that the appellant is entitled to a new trial because a comment was made during closing arguments which was fairly susceptible of being interpreted by the jury as referring to the appellant's failure to testify. The Florida Supreme Court has held that such comments require the granting of a motion for mistrial or, if such motion is denied, a reversal for new trial. David v. State, 369 So.2d 943 (Fla. 1979); Trafficante v. State, 92 So.2d 811 (Fla. 1957); Sublette v. State, 365 So.2d 775 (Fla. 3d DCA 1979); DeLuna v. State, 308 F.2d 140 (5th Cir. 1962).
Accordingly, the judgment is reversed and this cause is remanded for further proceedings in accord herewith.
ANSTEAD, HERSEY and HURLEY, JJ., concur.
ON REHEARING
The petition for rehearing and other relief is denied. However, we acknowledge that the First and Second District Courts have, on at least two occasions, apparently invoked a different standard on review than that established by the Florida Supreme Court and followed by this court in resolving this appeal. See Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982) and State v. Bolton, 383 So.2d 924 (Fla. 2d DCA 1980).
ANSTEAD, HERSEY and HURLEY, JJ., concur.