
    Michael Roy MIMS, Appellant, v. STATE of Florida, Appellee.
    No. GG-84.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1979.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Mims and Hutto were jointly charged and tried for burglary. Mims’ motion for a separate trial was denied. During the joint trial, over objection by Mims, the state was permitted to adduce evidence of oral and written confessions given by Hutto which implicated Mims. A passing attempt to disguise Hutto’s incriminating references to Mims was made by substituting pronouns and other words in place of Mims’ name. The altered confession thus read in part as follows:

Question: On 19 December, 1976, were you at a cabin on the Oklawaha River with another subject? Answer: Yes, sir. Question: Did either of you pull or push in the screen to the back door? Answer: Another person did.
Question: Did the two of you then go through the screen and onto the porch? Answer: Yes.
Question: Who went in first? Answer: The other person.
Question: What happened after you and he were on the porch? Answer: He told me to look into the house and see how pretty it is and then he said he was going to get in and he asked me about a hunting knife. I told him I didn’t carry one, and he got a lawnmower blade and that is what was used.
Question: What did he use the mower blade for? Answer: To pry the door.

Other testimony established that Mims and Hutto were together near the cabin at the time when, under the state’s theory of the case, the cabin was entered. The jury could not have supposed that Hutto referred to anyone other than appellant Mims in his incriminating statement, brother was another character in the scenario, but Hutto’s quoted statement referred independently to Mims’ brother, and so could not have been understood by the jury as referring to anyone but appellant Mims himself. Mims was convicted of trespass. Mims’

The receipt in evidence of Hutto’s statement, unsatisfactorily expurgated, deprived appellant Mims of his right to confront and cross-examine the witnesses against him, including co-defendant Hutto, who did not testify. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Cook v. State, 353 So.2d 911 (Fla. 2d DCA 1977). The evidence of appellant’s guilt was not so overwhelming as to render the error harmless. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

There is no showing that the trial court, in denying the motion for severance, abused its discretion as that discretion is defined most recently by the Florida Supreme Court in Menendez v. State, 368 So.2d 1278 (1979).

Rule 3.152(2), Florida Rules of Criminal Procedure, provides for the procedure used by the trial court in the instant case with respect to the co-defendant’s statement. That Rule is, in pertinent part, as follows:

“If a defendant moves for a severance of defendants on the ground that an oral or written statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
(i) a joint trial at which evidence of the statement will not be admitted;
(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
(iii) severance of the moving defendant. . . . ” (e. s.)

The rationale of the majority effectively precludes use of the foregoing procedure and overrides without appropriate consideration the exercise of the trial court’s discretion. Menendez, supra.

Further, it is clear that the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) applies because the error, if any, was “harmless beyond a reasonable doubt.” Mims was convicted of trespass, not burglary. By Mims’ own admission he was present at the cabin on the day in question. The co-defendant’s statement, even if clearly understood by the jury as applying to Mims, corroborated Mims’ admission and did not prejudice him. Cook v. State, 353 So.2d 911, 917 (Fla. 2nd DCA 1977). The jury chose to disbelieve Mims’ story of having the owner’s permission to be at the cabin. Mims’ entry on the premises was therefore unlawful and his conviction for trespass should be affirmed.

I respectfully dissent.  