Shepherd v. State

436 So. 2d 232

• Court: District Court of Appeal of Florida
• Decided: July 5, 1983
• Docket: 82-2113
• Status: Published

Opinion

436 So.2d 232 (1983)

Richard Wayne SHEPHERD, Appellant,
v.
The STATE of Florida, Appellee.

No. 82-2113.

District Court of Appeal of Florida, Third District.

July 5, 1983. Rehearing Denied September 7, 1983.

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.

PER CURIAM.

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.