THE STATE OF FLORIDA, APPELLANT,
v.
ANTONIO BENTON, APPELLEE
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The State of Florida appealed a trial court's order granting Antonio Benton a new trial on a charge of resisting an officer without violence. The appellate court reversed, holding that the prosecutor's comments during closing argument, while improper, did not warrant a new trial because they were not sufficiently egregious and the defendant failed to pursue adequate remedies when objections were sustained.
The trial court abused its discretion in granting a new trial. A single improper comment about defense counsel's job does not support a new trial order, and the defendant's failure to request curative instructions or a mistrial after the court sustained his objection to the comment about his right to remain silent precludes awarding a new trial on that basis. Even if the issue was not waived, any error was harmless given the undisputed evidence.
[1] A trial court abuses its discretion by ordering a new trial based on a single improper prosecutorial comment during closing argument, absent circumstances rendering the c…
[2] A defendant waives the right to a new trial based on an impermissible prosecutorial comment on the right to remain silent if the defendant fails to request a curative ins…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although the state improperly commented that it is defense counsel's "job to cross things up, to muddy the water," that single comment does not support a new trial order.”
Establishes the court's holding that a single isolated prosecutorial comment, even if improper, does not warrant a new trial without additional aggravating circumstances.
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Join FLexlaw to unlock all legal intelligenceBenton was charged with resisting an officer without violence. During the state's closing argument, the prosecutor made improper comments about the de…
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PER CURIAM.
The state appeals an order granting defendant a new trial on the charge of resisting an officer without violence. We reverse.
The trial court abused its discretion in ordering the new trial based on the state’s comments in its closing argument. Although the state improperly commented that it is defense counsel’s “job to cross things up, to muddy the water,” that single comment does not support a new trial order. See Crump v. State, 622 So. 2d 963, 971-972 (Fla.1993) (prosecutor’s comment described “defense as an ‘octopus’ clouding the water in order to ‘slither away1 ... not so outrageous as to taint the jury’s finding of guilt.”); Lopez v. State, 555 So. 2d 1298 (Fla. 3d DCA 1990); cf. Alvarez v. State, 574 So. 2d 1119 (Fla. 3d DCA 1991) (repeated comments). As to the state’s impermissible comment on defendant’s right to remain silent, defendant’s failure to request a curative instruction or a mistrial1 after the court apparently sustained defendant’s objection precludes awarding a new trial based on that comment. State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995) (where defendant did not seek further relief following court’s sustaining objection to prosecutor’s improper comment new trial order reversed); see Puentes v. State, 658 So. 2d 171 (Fla. 3d DCA 1995); Escobedo v. State, 561 So. 2d 429 (Fla. 3d DCA 1990); cf. Spencer v. State, 645 So. 2d 377 (Fla.1994) (where defendant objected, requested a mistrial, but did not request a curative instruction issue of improper prosecutorial closing argument preserved). Furthermore, assuming that the issue was not waived, the error was harmless: defendant stipulated that the officer attempted to make a traffic stop in the lawful execution of a legal duty; the testimony that the officer showed defendant his badge before defendant drove away was undisputed; and two officers testified to pursuing defendant in his truck. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Accordingly, the order granting-defendant a new trial is reversed.
Reversed and remanded.
. The court discussed with defense counsel whether she wanted a mistrial, the necessity for requesting a mistrial, and whether she waived the issue by failing to making such request. After the discussion, defense counsel stated that she was not moving for a mistrial.
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Citator
Cited By (11 total)
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Companioni v. City OF Tampa, 51 So. 3d 452 (Fla. 2010)…for review of the decision of the Second District Court of Appeal in City of Tampa v. Companioni, 26 So. 3d 598 (Fla. 2d DCA 2009), which is in express and direct conflict with the decisions of the Third District Court of Appeal in State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995), and Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983), and the Fifth District Court of Appeal in State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995).1 The districts conflict over whether a trial court may grant…
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Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998)…ms of guilt. The prosecutor continued: Now where it talks about my job to present the evidence and their job to question and then I argue about their manner of questioning, I agree, that was improper argument. He then argued that State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995), upon which the defendant relied for support of his motion for new trial, did not provide the defen [*208] dant the relief sought. The prosecutor advised the trial judge that he, himself, had represented the state at trial in Bent…
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Barnes v. State, 743 So. 2d 1105 (Fla. 4th DCA 1999)…rd time we have been forced to deal with his indulgence in what is often euphemistically called ‘overzealous advocacy,’ but is really just unprofessional and unethical behavior. See Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998); State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995). We therefore now fulfill the promise of Lewis, 711 So. 2d at 208 n. 1, and refer him to the Florida Bar.” With the fourth rebuke of prosecutor Mili-an by this court, we hope that the disciplinary organs of The Florida Bar will f…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Dusty Ray Spencer v. State, 645 So. 2d 377 (Fla. 1994)
- Crump v. State, 622 So. 2d 963 (Fla. 1993)
- Tucker v. State, 555 So. 2d 1298 (Fla. 3d DCA 1990)
- State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995)
- Small v. State, 574 So. 2d 1119 (Fla. 2d DCA 1990)
- Albury v. State, 561 So. 2d 429 (Fla. 3d DCA 1990)
- Puentes v. State, 658 So. 2d 171 (Fla. 3d DCA 1995)