Spann v. State , 340 So. 2d 1215 ( 1977 )

340 So. 2d 1215 (1977)

John SPANN, Appellant,
v.
STATE of Florida, Appellee.
James BURKS, Appellant,
v.
State of Florida, Appellee.

Nos. 75-1648, 75-1741.

District Court of Appeal of Florida, Fourth District.

February 18, 1977.

Richard L. Jorandby, Public Defender, and Daniel T. O'Connell, Asst. Public Defender, West Palm Beach, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

During the course of appellants' trial the arresting officer testified that appellant Spann gave an incriminating statement after receiving Miranda warnings. He also testified that appellant Burks remained silent. No objection was made. However, the Supreme Court has held such testimony constitutes fundamental error of constitutional dimension. Bennett v. State, 316 So. 2d 41 (Fla. 1975). See also Jones v. State, 200 So. 2d 574 (Fla. 3d DCA 1967); Martin v. State, 334 So. 2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976).

We have examined appellants' other point on appeal and found no reversible error. Accordingly, the judgment appealed from is affirmed as to appellant Spann and reversed and remanded for a new trial as to appellant Burks.

CROSS and ALDERMAN, JJ., concur.