#### Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee.

No. 76-1035.

District Court of Appeal of Florida, Third District.

July 6, 1977.

Rehearing Denied March 17, 1978.

Law Offices of Joe N. Unger and Mark King Leban, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Paul Mendelson, Legal Intern, for appellee.

Before PEARSON, HAVERFIELD and HUBBART, JJ.

*321PER CURIAM.

Theophilus Martin appeals his conviction for aggravated assault and unlawful possession of a firearm and raises three points on appeal, of which only the second is necessary to consider, to wit: the trial court erred in overruling defendant’s objection and in failing to declare a mistrial when the prosecutor persistently cross-examined the defendant about his failure to make an exculpatory statement to the police after being advised of his rights to remain silent. We find this point has merit.

During the prosecutor’s recross examination of the defendant, the following colloquy occurred:

> “RECROSS EXAMINATION

> “BY MR. MCHALE:

> “Q Mr. Martin, you never fired at Mr. Bryant?

> “A I told you, I disabled the vehicle.

> “Q Did you tell the police at the scene you did not fire at Mr. Bryant?

> “A I may have recall telling the policeman. I was highly emotional, but, I walked out towards Mr. Bryant’s car. ***** *

> “Q [By Mr. McHale] Mr. Martin, why did you not tell anyone this story before today?

> “MR. GOULD: I object to that question, also, as being argumentative.

> “THE COURT: Overruled, sir.

> “THE WITNESS: Are you saying why didn’t I tell anyone this story?

> “Q Before today.

> “A This is where I assume it should be to tell. Everybody is witnesses that comes up.

> “Q You waited until the trial to tell this story?

> “A What story?

> “Q What actually happened, according to you?

> “A I was advised of my rights at the police station.

> “Q Were you told you could make a statement if you wanted to?

> “A He advised me, the detective who was — the detective advised me of my rights.

> “Q Did he tell you not to say anything?

> “A He said if I wished to I could. If I didn’t, I didn’t have to.

> “Q Why did you not tell him actually what happened?

> “MR. SOBEL: I object.

> “THE COURT: Sustained.

> “MR. MCHALE: I have nothing further.

> “THE COURT: Anything else from the defendant.”

> ******

The principle of law is now well established that any comment upon an accused’s exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. *Bennett v. State,*316 So.2d 41 (Fla.1975); *Shannon v. State,*335 So.2d 5 (Fla.1976). Recently this legal principle has been extended to the point that a deprivation of due process results when a prosecutor is permitted to use the silence of an accused at the time of his arrest to impeach his explanation subsequently offered at trial. See *Doyle v. Ohio,*426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); *Davis v. State,*342 So.2d 987 (Fla.3d DCA 1977); *Smith v. State,*342 So.2d 990 (Fla.3d DCA 1977); *Thomas v. State,*342 So.2d 991 (Fla.3d DCA 1977).

The prosecutor’s cross-examination of the defendant concerning the defendant’s pretrial silence was improper and, accordingly, defendant’s convictions and sentences are reversed and the cause remanded to the trial court for a new trial.

Reversed and remanded.

PEARSON, Judge

(concurring specially).

I think that it should be mentioned that we are here dealing with a trial before the court without a jury. The State urges that we should apply a more liberal rule in determining whether the cross-examination of the defendant to bring out the fact of his silence after receiving the *Miranda*warning *322was reversible error, relying on *Prince v. Aucilla River Naval Stores Co.,*103 Fla. 605, 137 So. 886 (1931); and *Belcher Towing Co. v. Board of County Commissioners,*233 So.2d 456 (Fla.3d DCA 1970). I cannot agree with the State’s argument because I feel that a defendant has the same constitutional rights in every trial. Nevertheless, because other courts may disagree with this decision on these circumstances, I think our holding must be clear.

The State’s argument that this is a retroactive application of the holding of *Doyle v. Ohio,*426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), is not factually true in view of the fact that the opinion in *Jones v. State,*200 So.2d 574 (Fla.3d DCA 1967), held that the admission of evidence of a defendant’s silence after being informed of his *Miranda*rights was fundamental error. I, therefore, concur in the opinion and the decision to reverse.

Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.

ON PETITION FOR REHEARING

PER CURIAM.

In this petition for rehearing, the issue has surfaced as to whether the error complained of (i.e., the admissibility of the defendant’s post-arrest silence) is fundamental as well as constitutional as a result of the State’s contention that the defendant did not properly preserve this error for appellate review. Contrary to this contention, we believe that defense counsel made sufficient objection to the admission of evidence concerning defendant’s post-arrest silence as to properly preserve this issue on appeal. Therefore, it is unnecessary to resolve the issue of whether such error is fundamental as well as constitutional.

Petition denied.

HUBBART, Judge

(dissenting).

I respectfully dissent. I would grant the state’s petition for rehearing and affirm the conviction herein. In my judgment, the error complained of concerning the admissibility of the defendant’s post-arrest silence was not properly preserved for appellate review and the admission of such evidence was not fundamental error.

The error complained of herein was the admission of the defendant’s post-arrest silence elicited from the defendant on cross examination by the state. This testimony was not objected to by defense counsel except on three occasions and then only after some or most of the evidence complained of had been submitted.. Two of these objections were sustained. The third objection was made on the sole ground that the question was argumentative and that ground has been abandoned on appeal.

It has long been the established law of this state that the admissibility of evidence received without objection in the trial court cannot be reviewed on • appeal absent an error of fundamental dimensions. The same rule applies when the evidence is objected to at trial on grounds which are abandoned on appeal. *Ashford v. State,*274 So.2d 517 (Fla. 1973); *Jalbert v. State,*95 So.2d 589, 591 (Fla. 1957); *Walker v. State,*152 Fla. 455, 13 So.2d 4 (1943); *Sims v. State,*59 Fla. 38, 52 So. 198 (1910); *Ferrell v. State,*45 Fla. 26, 34 So. 220 (Fla. 1903); *Jones v. State,*35 Fla. 289, 17 So. 284 (Fla. 1895); *Koran v. State,*213 So.2d 735 (Fla. 3d DCA 1968); *Shea v. State,*167 So.2d 767 (Fla. 3d DCA 1964).

Under well-settled principles of Florida law, this court is accordingly precluded from considering whether the admission in evidence of the defendant’s post-arrest silence constitutes reversible error because the error was not properly preserved for appellate review. In addition, the admission of such evidence does not constitute fundamental error. *Porter v. State,*356 So.2d 1268 (Fla. 3d DCA 1978) (Hubbard, J. dissenting) and authorities collected; *Gillian v. State*(Fla. 1st DCA 1977) (case no. FF-59, opinion filed August 18, 1977); *Clark v. State,*336 So.2d 468 (Fla. 2d DCA 1976); *Farmer*v. *State,*326 So.2d 32 (Fla. 4th DCA 1976).