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491 So. 2d 1141

491 So.2d 1141

11 Fla.L.Weekly 357

State v. Kearse

Supreme Court of Florida

Decided July 17, 1986

Supreme Court of Florida · decided 1986-07-17

Cited by 2 later decisions — most recently January 1996

2 state decisions

Relies on 491 So. 2d 1129 - State v. DiGuilio · 451 So. 2d 487 - DiGuilio v. State · 450 So. 2d 1226 - Rowell v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-07-17

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McDONALD, Chief Justice.

¶1We granted review of Kearse v. State, 464 So.2d 202 (Fla. 1st DCA 1985), because it presents the same issue as the questions certified in Rowell v. State, 450 So.2d 1226 (Fla.5th DCA 1984), and DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984). In Kearsethe district court reversed Kearse’s conviction and remanded for a new trial because of a comment concerning Kearse’s right to remain silent. The court went on to say that the instant case is indistinguishable from Rowell. We recently held that the comment in Rowelldid not constitute a comment on silence and quashed that deci*1142sion. State v. Rowell, 476 So.2d 149 (Fla.1985).

¶2Our review of this record indicates that one could reasonably conclude that the witness’ comment here implicated Kearse’s right to remain silent. It is, therefore, more like DiGuiliothan Rowell. In State v. DiGuilio, 491 So.2d 1129 (Fla.1986), we held that a comment on a defendant’s remaining silent should be evaluated under the harmless error doctrine. Applying that test to the instant case, we find the witness’ comment to have been harmless beyond a reasonable doubt. Therefore, we quash that portion of the instant decision granting a new trial and direct the district court to affirm his conviction. We remand for consideration of Kearse’s third point on appeal, concerning sentencing errors, because that point is no longer moot.

¶3It is so ordered.

BOYD, OVERTON and SHAW, JJ., concur.ADKINS, EHRLICH and BARKETT, JJ., dissent.
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