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527 So. 2d 913

527 So.2d 913

13 Fla.L.Weekly 1528

Alvarez v. State

District Court of Appeal of Florida · decided 1988-06-28

Relies on 491 So. 2d 1129 - State v. DiGuilio · 515 So. 2d 206 - MacIas v. State

Decided 1988-06-28

WARREN H. COBB, Associate Judge.

¶1The defendant, Julio Alvarez, was convicted of possession of cocaine with intent to sell. At trial the prosecutor, in the presence of the jury, asked that the defendant take the stand during the state’s casein-chief. It was the prosecutor’s contention that a reference by defense counsel during cross-examination of a state witness to a scar on the defendant’s face constituted non-verbal testimony, thereby waiving the defendant’s right against self-incrimination. The defense unsuccessfully moved for a mistrial.

¶2Clearly, the prosecutor tried to compel testimony from the accused in rank violation of the fifth and fourteenth amendments to the United States Constitution. Cf. Macias v. State, 515 So.2d 206 (Fla.1987). Under the facts of the instant case, denial of the motion for mistrial cannot be deemed harmless error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

¶3*914REVERSED and REMANDED for new trial.

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