Victor Travieso and Manuel Esteban Perez v. State Florida

ON PETITION FOR REHEARING Per Curiam This court finds the state and Perez's petitions for rehearing to be without merit. However, we believe a clarification of the portion of our opinion concerning the comment on Travieso's right to remain silent wherein we stated: the cases are legion condemning such testimony as reversible error, is necessary. We acknowledge the recent supreme court opinion of State v. Marshall, 476 So.2d 150 (Fla. 1985), which holds that comments on the defendant's failure to testify should be evaluated in light of the harmless error doctrine. However, since we also reversed the judgment and sentence as to Travieso and remanded for a new trial on the basis that Travieso had standing to pursue his expectation of privacy via the motion to suppress, it is impossible to determine from this record what the evidence will be against Travieso. Therefore, we find that this case is inappropriate for consideration of the harmless error doctrine.