#### Lewis C. GIFFORD, Appellant, v. STATE of Florida, Appellee.

No. 76-1307.

District Court of Appeal of Florida, Fourth District.

Jan. 31, 1978.

Rehearing Denied March 21, 1978.

Richard L. Jorandby, Public Defender, James K. Green and Craig S. Barnard, Asst. Public Defenders, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

The appellant, Lewis C. Gifford, was convicted of sexual battery and breaking and entering with the intent to commit a felony. He claims that the state improperly commented on his right to remain silent after his arrest and that the trial court erred in refusing to instruct the jury on the lesser included offense of trespass. We agree and reverse.

Gifford testified in his own defense that he was invited by the victim to her residence, where she engaged in voluntary sexual intercourse with him. It was also shown that he had given a similar statement to the police several days after he was arrested. On cross-examination the defendant was asked several times why he didn’t give the police a statement to that effect when he was arrested. When this question was first asked, the trial court sustained a defense objection. Despite this the prosecution again elicited the fact that Gifford had made no statement when he was first arrested. Upon objection the prosecutor argued to the trial court:

> So, that opens up my questions, Your Honor, about whether he made any statement when he was arrested, which he did not. He made it three days later after he was identified.

By his argument the prosecutor conceded that he knew the appellant had made no statement at the time of his arrest. Notwithstanding this the prosecutor proceeded to elicit that fact from the appellant repeatedly. This constituted an improper comment on the appellant’s right to remain silent. *Doyle v. Ohio,*426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); *Smith v. State,*340 So.2d 930 (Fla. 4th DCA 1976). It makes no difference that the appellant was shown to have later given a statement. *Williams v. State,*335 So.2d 854 (Fla. 4th DCA 1976). And the Florida Supreme Court has held that such error requires reversal without regard to the harmless error doctrine. *Bennett v. State,*316 So.2d 41 (Fla.1975).

*437We also agree that the appellant was entitled, pursuant to his request, to have the jury instructed on the offense of trespass, as a lesser included offense of breaking and entering. *Dowis v. State,*326 So.2d 196 (Fla. 4th DCA 1976).

The judgment of the trial court is hereby reversed with directions that a new trial be granted in accordance with this opinion.

SCHWARTZ, ALAN R., Associate Judge, concurs.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

In my judgment this is not a *Doyle*or *Smith*situation. In both of those cases the defendant, after being advised of his rights, remained silent at the time of his arrest and thereafter until trial. At trial the defendant in each of those cases had an exculpatory story. Then the prosecutor in each case tried to attack the believability of defendant’s exculpatory story by eliciting the testimony that defendant had remained silent at the time of his arrest. In this case appellant remained silent at the time of his arrest after receiving advice as to his rights, but shortly thereafter he gave an inculpatory statement. At trial the incul-patory statement and the fact that appellant remained silent were revealed to the jury. I perceive a vast difference between commenting upon a defendant’s silence at the time of arrest when he never admitted guilt and at trial seeks to exculpate himself and a comment on a defendant’s silence at the time of arrest where he shortly thereafter admits his guilt. In the former situation the comment prejudices the defendant for exercising his constitutional right to remain silent — the prejudice is that it makes one suspect the defendant is guilty. In the latter situation, how can a defendant be prejudiced by the jury knowing he remained silent when in the next breath the jury is advised the defendant admitted his guilt.

In view of the foregoing, it seems to me that the facts of this case are akin to the facts in *Williams*v. *State,*335 So.2d 854 (Fla. 4th DCA 1976) and Breniser v. *State,*267 So.2d 23 (Fla. 4th DCA 1972). As I noted in *Williams,*I disagree that on these facts the *Bennett, Bostic*rule is applicable. However, the court in *Breniser*and *Williams*ruled otherwise. Accordingly, I reluctantly concur in the decision to reverse the judgment appealed from on that point.