Gutierrez v. State, 731 So. 2d 94 (Fla. 4th DCA 1999). · Go Syfert
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Gutierrez v. State, 731 So. 2d 94 (Fla. 4th DCA 1999). Cases Citing This Book View Copy Cite
“while an improper comment on a defendant's right to remain silent may be constitutional error, it is not considered fundamental error.”
15 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: JOHN URBANIAK v. STATE OF FLORIDA (fladistctapp, 2018-03-28)
Top citers, strongest first. 12 distinct citers.
discussed Cited as authority (verbatim quote) JOHN URBANIAK v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
while an improper comment on a defendant's right to remain silent may be constitutional error, it is not considered fundamental error.
discussed Cited as authority (rule) STEVEN CANNON v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2021 · confidence medium
We have held that “[w]hile an improper comment on a defendant’s right to remain silent may be constitutional error, it is not considered fundamental error.” Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999); see also Urbaniak, 241 So. 3d at 966 (“[T]he record does not reflect that the State relied on [the defendant’s] silence as substantive evidence of his guilt. … Because the only reference to [the defendant’s] silence was the isolated testimony of the deputy, we cannot conclude that the improper comment rose to the level of fundamental error in this case.”).
discussed Cited as authority (rule) Talley v. State
Fla. Dist. Ct. App. · 2019 · confidence medium
“In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial.” State v. Revenel, 184 So. 3d 6 The defense did not move for a mistrial. 16 629, 631 (Fla. 3d DCA 2016) (quoting Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999)).
discussed Cited as authority (rule) State v. Revenel
Fla. Dist. Ct. App. · 2016 · confidence medium
“In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object. to the comment and move for a mistrial.” Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999).
discussed Cited as authority (rule) Rao v. State
Fla. Dist. Ct. App. · 2010 · confidence medium
A comment on the right of silence in closing argument, while constitutional error, does not constitute fundamental error, which goes to the heart of the case or the merits of the cause of action. *46 See Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999).
discussed Cited as authority (rule) Simon v. State
Fla. Dist. Ct. App. · 2010 · confidence medium
“In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial.” Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999) (citing Allen v. State, 662 So.2d 323 , 328 n. 9 (Fla.1995)); see also Salazar v. State, 991 So.2d 364, 381 (Fla.2008) (“ ‘[A] defendant need not request a curative instruction in order to preserve an improper comment issue for appeal.
discussed Cited as authority (rule) Burford v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel.” *481 Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999) (citation omitted).
cited Cited as authority (rule) Watson v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
See Morrison v. State, 818 So.2d 432, 445 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 406 , 154 L.Ed.2d 308 (2002); Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999).
cited Cited "see" Dombrowski v. State
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Gutierrez v. State, 731 So.2d 94 (Fla. 4th DCA 1999); State v. Adkins, 96 So.3d 412 (Fla.2012).
cited Cited "see" Williams v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Gutierrez v. State, 731 So.2d 94 (Fla. 4th DCA 1999).
cited Cited "see" McKeever v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Raffone v. Fort Lauderdale Police Dep’t, 731 So.2d 94, 94 (Fla. 4th DCA 1999); Calavenzo v. State, 695 So.2d 857, 857 (Fla. 4th DCA 1997).
discussed Cited "see" Davidson v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Raffone v. Fort Lauderdale Police Dep’t, 731 So.2d 94 (Fla. 4th DCA 1999) (reversing summary denying denial of motion for return of property and remanding for evidentiary hearing to determine ownership issues, status and location of seized property, and whether valid basis, if any, exists for permitting retention of the property by seizing agency); Calavenzo v. State, 695 So.2d 857 (Fla. 4th DCA 1997) (reversing summary denial of motion for return of property and remanding for evidentiary hearing to determine ownership issues, whether any of petitioner’s property was no longer needed a…
Luis GUTIERREZ, Appellant,
v.
STATE of Florida, Appellee.
98-1507.
District Court of Appeal of Florida, Fourth District.
Apr 14, 1999.
731 So. 2d 94
Shahood.
Cited by 11 opinions  |  Published

[*95] Michael D. Gelety, Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Douglas Gurnic, Assistant Attorney General, Fort Lauderdale, for appellee.

SHAHOOD, J.

We affirm appellant's conviction of trafficking in cocaine and conspiracy to traffic in cocaine. Appellant raises several issues in his appeal, all of which we find to be without merit. We write, however, to discuss appellant's first issue, which concerns comments made by the prosecutor during cross-examination and closing argument regarding appellant's right to remain silent.

Appellant claims that during his cross-examination and in closing argument, improper comments were made by the prosecutor on his right to remain silent. While the prosecutor's remarks during closing argument were "fairly susceptible" of being interpreted by the jury as a comment on appellant's right to remain silent, such remarks were unpreserved. See, e.g., Dean v. State, 690 So.2d 720, 724 (Fla. 4th DCA 1997)(noting that "any remark which is `fairly susceptible' of being interpreted as a comment on silence creates a `high risk' of error") (citations omitted).

In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial. See Allen v. State, 662 So.2d 323, 328 (Fla.1995). While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel. See Nixon v. State, 572 So.2d 1336, 1340-41 (Fla.1990). Absent fundamental error, this issue must be affirmed. See Weiand v. State, 701 So.2d 562, 565 (Fla. 2d DCA 1997), quashed on other grounds, 24 Fla.L. Weekly S124, 732 So.2d 1044 (Fla.1999). While an improper comment on a defendant's right to remain silent may be constitutional error, it is not considered fundamental error. See State v. Marshall, 476 So.2d 150, 153 (Fla.1985)(citing Clark v. State, 363 So.2d 331 (Fla.1978), receded from in part on other grounds, State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

Since appellant failed to object to the remarks at trial and since an improper comment on a defendant's right to remain silent is not fundamental error which may be raised on appeal without an objection at trial, any errors were not preserved for appeal. See Clark, 363 So.2d at 333-34; Murphy v. International Robotics Sys., Inc., 710 So.2d 587, 590 (Fla. 4th DCA), review granted, 722 So.2d 193 (Fla.1998).

AFFIRMED.

DELL and GROSS, JJ., concur.