Opinion
No. 83-1467.
January 9, 1985.
Appeal and cross-appeal from Circuit Court, Broward County; Harry G. Hinckley, Jr., Judge.
Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant, cross-appellee.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee, cross-appellant.
AFFIRMED.
HERSEY and GLICKSTEIN, JJ., concur.
HURLEY, J., concurs specially with opinion.
I have dissented from this court's affirmance of Mr. Selig's co-defendant's conviction. See DeRock v. State, 461 So.2d 1373, (Fla. 4th DCA 1985). However, I concur in the decision to affirm Mr. Selig's conviction because I am satisfied that his attorney failed to enter a timely objection to an impermissible comment on the defendant's exercise of his right to remain silent. Counsel's catch-all effort to join in the objections to instructions made by co-defendant's counsel during the charge conference was neither specific nor broad enough to encompass an objection made by co-defendant's counsel prior to the charge conference. Indeed, co-defendant's counsel made his objection prior to the luncheon recess. The charge conference began after lunch and defense counsel's effort to join in came at the end of the charge conference. It was too little, too late. Since the error is constitutional but not fundamental, I concur in the decision to affirm.