WINFRED AVANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's argument was a permissible reference to the absence of testimony supporting the defendant's contentions, not an impermissible comment on the defendant's failure to testify, and that convictions for both burglary and robbery are permissible when they involve separate factual predicates and legal elements.
The defendant was convicted of burglary and robbery. During closing arguments, the prosecutor commented on the absence of evidence to support the defe…
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SCHWARTZ, Chief Judge.
Neither of the appellant’s points is meritorious. The challenged portion of the prosecutor’s final argument1 was a permissible reference to the absence of testimony to support the defendant’s factual contentions, rather than an impermissible comment on his failure to testify. State v. Sheperd, 479 So. 2d 106 (Fla.1985); White v. State, 377 So. 2d 1149 (Fla.1979).
Secondly, because the respective crimes involve separate factual predicates and legal elements and are designed to meet different evils, there is nothing to the claim that, under Carawan v. State, 515 So. 2d 161 (Fla.1987), a defendant may not be convicted of both burglary, that is, entering another’s premises with the intent to commit the offense of robbery, and the robbery itself. Taylor v. State, 138 Fla. 762, 190 So. 262 (1939); Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988), and cases cited; see Few v. State, 533 So. 2d 914 (Fla. 2d DCA 1988).
AFFIRMED.
. The prosecutor stated:
Have you heard any evidence in this case, is there any evidence in this record that this guy bought a credit card from anybody? Did you hear anything from that witness stand, any word—
**
MR. KASTRENAKES: None, zero, zip....
There is no explanation in this record for the use of that credit card other than Mr. Guralnick’s speaking to you in opening statement, and that isn’t evidence.
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Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990)…he defendant’s statement to an arresting officer, which are not impermissible,3 or to his comments concerning what various witnesses had testified to, which similarly are not improper. See State v. Sheperd, 479 So. 2d 106 (Fla.1985); Avant v. State, 538 So. 2d 99 (Fla. 3d DCA 1989); Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986). Therefore, it cannot be said that counsel’s failure to object to these statements was deficient in performance. Regarding appellant’s failure to raise the defense of voluntary…
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Kirby v. State, 625 So. 2d 51 (Fla. 3d DCA 1993)…ument was a permissible reference to the absence of testimony to support the defendant’s contention that he did not intend to sexually batter the victim, rather than an impermissible comment on the defendant’s failure to testify. See Avant v. State, 538 So. 2d 99 (Fla. 3d DCA1989). As to all the claims of prosecutorial misconduct raised by the defendant, we examined the record and could not find any error “so prejudicial as to vitiate the entire trial.” Murray v. State, 443 So. 2d 955, 956 (Fla. 1984). See…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- State v. Sheperd, 479 So. 2d 106 (Fla. 1985)
- Aldine Taylor v. State, 138 Fla. 762 (Fla. 1939)
- Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)
- FEW v. State, 533 So. 2d 914 (Fla. 2d DCA 1988)