Opinion
No. 82-1157.
August 12, 1986.
Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Nancy C. Wear, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and JORGENSON, JJ.
The conviction and sentence from which the defendant appeals is reversed upon a holding that the trial court committed reversible error in denying the defendant's motion for mistrial when the prosecution in cross-examination of the defendant commented upon his post-arrest silence. A prosecutor's comment on a defendant's post-arrest silence is a serious constitutional violation. E.g., David v. State, 369 So.2d 943 (Fla. 1979); Clark v. State, 363 So.2d 331 (Fla. 1978); Ruiz v. State, 378 So.2d 101 (Fla. 3d DCA 1979). Further, the state did not prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. See, e.g., State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); State v. Marshall, 476 So.2d 150 (Fla. 1985).
Reversed and remanded for a new trial.