Opinion
No. 82-2113.
July 5, 1983. Rehearing Denied September 7, 1983.
Appeal from the Circuit Court for Dade County, Fredricka Smith, J.
Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal Darby, John H. Lipinski, Miami, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and FERGUSON, JJ.
Pursuant to jury verdict, the defendant was adjudged guilty of the crimes of sexual battery, burglary, and attempted second degree murder. He appeals the adjudication of guilt and attendant sentences contending that the prosecution improperly commented during closing argument as follows:
We've heard a lot of allegations with respect to a defense and I must confess to you, when I sat down to prepare my closing remarks, I had a lot of difficulty in trying to figure out exactly what the defense was going to be, because, frankly, for my purpose, I haven't heard any.
This comment met with an immediate objection and a motion for mistrial, which motion was denied.
We reverse because the prosecutor's comment was clearly susceptible of being interpreted by the jury as referring to the defendant's failure to testify. David v. State, 369 So.2d 943 (Fla. 1979); Fernandez v. State, 427 So.2d 265 (Fla. 2d DCA 1983); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981).
Reversed and remanded for a new trial.