Hoggins was convicted of attempted first-degree murder with a firearm, armed robbery, aggravated assault with a firearm, and resisting arrest without violence. On appeal, the court recognized that the Fifth and Fourteenth Amendments to the United States Constitution do not preclude the use of pre- Miranda silence for impeachment purposes; however, the court, relying on Webb v. State, 347 So.2d 1054 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977), held that the prosecutor's improper comments on Hoggins' custodial, pre- Miranda silence violated the due process guarantees found in article I, section 9 of the Florida Constitution.Hoggins, 689 So.2d at 384-86.
The language in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), although set in the context of silence at arrest, reflects a general policy. While the Willinsky court dealt with silence at a preliminary hearing, in Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977), we applied the same type of analysis to a situation factually similar to the instant case. Webb testified on his own behalf to an alibi and on cross-examination the prosecutor was allowed to ask why Webb had not told the police about the alibi on his arrest.
but an educated, sophisticated defendant familiar with his right to remain silent who was not apprised of that right by the police would be subject to impeachment for the exercise of a known constitutionally protected right.[Webb v. State, 347 So.2d 1054, 1056 (Fla. 4th DCA 1977).] Thus, by relying on the right to remain silent to preclude evidence of and comment upon postarrest silence we avoid treating differently defendants who are aware of their Miranda rights and those who are not. Moreover, we do not provide police officers with an incentive to delay the giving of Miranda warnings.
Maness v. State, 341 So.2d 246 (Fla. 4th DCA 1977) Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977) Boyd v. State, 351 So.2d 1041 (Fla. 4th DCA 1976)
Under Florida law, the State cannot "comment on a defendant's postarrest silence whether o[r] not the silence was induced by Miranda warnings." State v. Hoggins , 718 So.2d 761, 769 (Fla. 1998) (alteration added, emphasis added); seeWebb v. State , 347 So.2d 1054, 1056 (Fla. 4th DCA 1977). However, the State may impeach a defendant with his or her pre-arrest, pre-Miranda silence.
Under Florida law, the State cannot "comment on a defendant's postarrest silence whether o[r] not the silence was induced by Miranda warnings." State v. Hoggins, 718 So. 2d 761, 769 (Fla. 1988) (alteration added, emphasis added); see Webb v. State, 347 So. 2d 1054, 1056 (Fla. 4th DCA 1977). However, the State may impeach a defendant with his or her pre-arrest, pre-Miranda silence.
We hold that the trial court erred when it summarily denied appellant's motion for post-conviction relief, because it was legally sufficient. See Webb v. State, 347 So.2d 1054, 1056 (Fla. 4th DCA 1977) (reversing convictions on direct appeal, finding trial court erred by allowing prosecutor to impeach defendant by his silence after arrest; "we think there was nothing inconsistent with Webb's police station silence and his alibi testimony at trial, and we also think the cross-examination as to appellant's pretrial silence violated the due process clause of the Fourteenth Amendment, Smith v. State, 340 So.2d 930 (Fla. 4th DCA 1976)"); Lee v. State, 422 So.2d 928, 930 (Fla. 3d DCA 1982) (state court is free to place greater restrictions on use of post-arrest silence than do federal courts), rev. denied, 431 So.2d 989 (Fla. 1983); Clark v. State, 363 So.2d 331, 334 (Fla. 1978) (holding that contemporaneous objections were required to preserve for appeal improper comments on defendant's right to remain silent); Jackson v. State, 711 So.2d 1371, 1372 (Fla. 4th DCA 1998) (reversing order summarily denying motion for post-conviction relief, inter alia, because any error involved in counsel'
The scope of the right to be free from the state commenting on the exercise of silence is not tied to whether Miranda warnings have been given or are even necessary. Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), rev. denied, 431 So.2d 989 (Fla. 1983); Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977), cert. denied, 354 So.2d 986 (Fla. 1977). The record is silent as to whether appellant was ever given Miranda warnings which might have induced his silence.
The objection was overruled and the motion denied. As a matter of state constitutional law, it is impermissible to comment on defendant's post-arrest silence whether or not that silence is induced by Miranda warnings. Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), review denied, 431 So.2d 989 (Fla. 1983); see Webb v. State, 347 So.2d 1054 (Fla. 3d DCA), cert. denied, 354 So.2d 986 (Fla. 1977); see also Hosper v. State, 513 So.2d 234 (Fla.3d DCA 1987); Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977). The participation of the uniformed Miami police officer constituted state action in Hick's apprehension and detention; thus, triggering his right to keep his silence after arrest from the jury.
Finally, in Florida, the Miranda decision has generally been held to be irrelevant to the resolution of arguments claiming improper comment upon the right to silence. See, e.g., Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), review denied, 431 So.2d 989 (Fla. 1983); Webb v. State, 347 So.2d 1054 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977). Lee was cited as authority in Smith.