Opinion
No. 79-1444.
December 5, 1979.
Appeal from the Circuit Court, Polk County, Richard A. Bronson, J.
Jack O. Johnson, Public Defender, and Howard L. Dimmig, II, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Samuel Williams was convicted of burglary and grand theft. Williams appeals contending that the trial judge erred when he refused to grant Williams a mistrial following improper comment before the jury on Williams' exercise of his right to remain silent. We agree and reverse. Although neither comment in question appears to have been elicited by the prosecuting attorney, both comments were nonetheless made in the presence of the jury. Williams made a timely motion for mistrial in each instance, and the trial judge erred in denying those motions. Clark v. State, 363 So.2d 331 (Fla. 1978).
Reversed and remanded for a new trial.
SCHEB, Acting C.J., DANAHY, J., and RAWLINS, ROBERT W., Jr., Associate Judge, concur.