Kinchen v. State

432 So. 2d 586

• Court: District Court of Appeal of Florida
• Decided: June 29, 1983
• Docket: 81-2133
• Status: Published

Opinion

432 So.2d 586 (1983)

Randy Eugene KINCHEN, Appellant,
v.
STATE of Florida, Appellee.

No. 81-2133.

District Court of Appeal of Florida, Fourth District.

May 11, 1983. On Rehearing June 29, 1983.

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.

PER CURIAM:

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

PER CURIAM.

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).