              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



JOHN MATTHEW CARLISLE,              )
                                    )
           Appellant,               )
                                    )
v.                                  )                Case No. 2D13-5369
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed May 6, 2015.

Appeal from the Circuit Court for
Hillsborough County; J. Rogers Padgett,
Senior Judge.

Howard L. Dimmig, II, Public Defender, and
William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for Appellee.



KHOUZAM, Judge.

             John Matthew Carlisle timely appeals his conviction and sentence for

burglary of an unoccupied dwelling, providing false information on a pawnbroker form,
and grand theft. Because comments on Carlisle's post-arrest, pre-Miranda1 right to

remain silent were improperly admitted at trial, we reverse and remand for a new trial.

              The record shows that a home was burglarized on January 8, 2013. A

PlayStation console and controllers were among the items stolen. The PlayStation

equipment, identified by serial number, was later found at a pawn shop. The pawn

shop's records revealed that Carlisle had sold the equipment to the pawn shop on

January 9. The transaction was also recorded by the pawn shop's surveillance

cameras, and the video showed that Carlisle had been accompanied by another person.

The detective investigating the burglary located Carlisle and arrested him.

              The detective testified at trial that when she arrested Carlisle, she

explained the charges to him, told him that she had to complete some paperwork before

asking him questions, and informed him that he would have a chance to make a

statement. The prosecutor asked the detective, "And although you didn't ask him any

questions, did Mr. Carlisle then say anything to you?" The detective responded, "He

did. He stated that 'he wasn't going to tell me where he got the property and he wasn't

going to tell on anyone.' " The trial court allowed the statement to be admitted.

              Carlisle contends that this statement was admitted in violation of his right

to remain silent. We agree. As the Florida Supreme Court has explained, the due

process clause of Florida's constitution prohibits the use of post-arrest, pre-Miranda

silence at trial. State v. Hoggins, 718 So. 2d 761, 768-70 (Fla. 1998). "[T]his prohibition

extend[s] to all evidence and argument . . . that [is] fairly susceptible of being interpreted


              1
                  Miranda v. Arizona, 384 U.S. 436 (1966).




                                            -2-
by the jury as a comment on silence." Id. at 769. Further, this proscription applies to an

appellant's affirmative statements that he will not talk. See Mack v. State, 58 So. 3d

354, 355-56 (Fla. 1st DCA 2011) (holding that investigator's testimony that appellant

"said he'd rather talk to his attorney, and he didn't want to talk anymore" was an

impermissible comment on appellant's right to remain silent); Ash v. State, 995 So. 2d

1158, 1158-59 (Fla. 1st DCA 2008) (holding that officer's testimony that appellant

"replied that he's got nothing to say to me" was impermissible comment on his right to

remain silent). Here, Carlisle's post-arrest, pre-Miranda statement that he would not

provide any information should not have been admitted because it was fairly susceptible

to being interpreted as a comment on Carlisle's right to remain silent.

              And though the State contends otherwise, this error was not harmless

under the circumstances of this case. Indeed, the error was compounded by additional

improper comments on Carlisle's right to remain silent. First, a recording of the

detective's interview with Carlisle was played for the jury. During the interview, the

detective asked Carlisle, "If you're truly innocent and you truly haven't burglarized

anything, why would you want to take a felony charge and ruin your life?" This question

inappropriately suggested that Carlisle's silence indicated his guilt.

              Second, the prosecutor improperly commented during closing argument

on Carlisle's right to remain silent. Carlisle testified at trial that he innocently bought the

stolen items from a man at a convenience store, and in closing the prosecutor

emphasized that Carlisle had not previously mentioned his story. Specifically, the

prosecutor commented: "Never one time on any of the recordings that we heard did you

hear the defendant say 'I wish I never bought that. I wish Joe never pulled up that




                                             -3-
morning. I did not know it was hot and stolen stuff.' " Not only is this statement

susceptible to being interpreted as a comment on Carlisle's right to remain silent but it

also improperly suggests that Carlisle was required to present evidence. See Janiga v.

State, 713 So. 2d 1102, 1103 (Fla. 2d DCA 1998) ("The law is well-settled that the State

may not comment on the defendant's failure to present evidence to refute an element of

the crime charged, because such could erroneously lead the jury to believe that the

defendant has the burden of proving her innocence."). Because Carlisle's statement

that he would not talk to the detective was erroneously admitted and repeatedly

highlighted throughout the trial, we must reverse and remand for a new trial.

              Reversed and remanded for a new trial.


NORTHCUTT and LUCAS, JJ., Concur.




                                           -4-
