ANTONIO DE JESUS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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De Jesus was convicted of crimes during a home invasion robbery. The appellate court affirmed most convictions and sentences but reversed one burglary conviction as duplicative and corrected a sentencing error regarding a mandatory minimum term.
The prosecution's closing argument comments were within the range of appropriate advocacy and did not require reversal. The habitual offender sentencing was properly established. De Jesus was improperly convicted of two counts of burglary with assault based on attacks on two separate victims. The written grand theft sentence must be amended to eliminate an unimposed mandatory minimum term.
[1] Prosecution's closing arguments that characterize defense counsel's role as attacking credibility when lacking facts or law are generally permissible advocacy.
[2] Attacks on the credibility of witnesses by the prosecution during closing arguments are permissible when the defense lacks strong factual or legal support.
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“We think that these comments, which are common to the point of universality and familiar to the point of judicial boredom, were within the range of appropriate advocacy and therefore not erroneous, much less so beyond the pale as to vitiate the trial entirely and require a new one.”
Establishes that routine prosecutor arguments about trial strategy fall within permissible advocacy and do not require reversal
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Join FLexlaw to unlock all legal intelligenceDe Jesus was convicted by jury of numerous crimes committed during a home invasion robbery. The prosecution presented evidence including fingerprints …
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SCHWARTZ, Chief Judge.
After a jury trial, De Jesus was convicted of numerous crimes committed during a home invasion robbery. We disagree with the appellant’s primary claim for reversal, that the prosecution’s final argument was fatally erroneous. He points specifically to the following:
Of course, she [defense counsel] doesn’t think the evidence is enough. That’s her job. She is defending the defendant.
* * * * *
There is a saying that trial attorneys learn in law school: When you have the law, you sympathize [sic] the law. When you have the facts, you emphasize the facts. And when you don’t have anything, you bang on the table and attack the credibility of the witnesses.
And that’s what’s happening here with the fingerprints. And they are attacking the credibility of the witnesses, because they don’t have the facts, and they don’t have the law.
We think that these comments, which are common to the point of universality and familiar to the point of judicial boredom, were within the range of appropriate advocacy and therefore not erroneous, much less so beyond the pale as to vitiate the trial entirely and require a new one. See Bonifay v. State, 680 So. 2d 413 (Fla.1996); King v. State, 623 So. 2d 486 (Fla.1993); Heinz v. State, 615 So. 2d 238 (Fla. 3d DCA 1993). They surely bear no resemblance to the kinds of attacks on defense counsel or the defense itself which mandate reversal.1 Cf. Alvarez v. State, 574 So. 2d 1119, 1120 (Fla. 3d DCA 1991) (“Don’t let them confuse you, because all you will get from the defense is tearing down. You will not get anything substantive, only inconsistencies .... So, if you are nitpicking and trying to insult somebody’s intelligence, as the defense is really doing today.... ”); Jackson v. State, 421 So. 2d 15, 15 n. 1 (Fla. 3d DCA 1982) (“Would you buy a used car from this guy, ladies and gentlemen of the jury?”); Peterson v. State, 376 So. 2d 1230, 1231, 1233 (Fla. 4th DCA 1979) (“a police officer ... had to go down into the dirt, into the slime with the pushers, deal with them at their level and bring the case to court.... Not only do they have to get into these disguises and crawl down there and deal with people like this, but they have to deal with people like his lawyer....”), cert, denied, 386 So. 2d 642 (Fla.1980).
There is also no merit in the claim that the state did not appropriately establish the basis for the defendant’s sentencing as a habitual offender. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Mendes v. State, 522 So. 2d 1002 (Fla. 4th DCA 1988); McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986).
We do agree with both parties that Dejesus was improperly convicted of two counts of burglary with an assault on the basis of attacks on two separate victims within the home. See Troedel v. State, 462 So. 2d 392 (Fla.1984); James v. State, 567 So. 2d 59 (Fla. 4th DCA 1990), cause dismissed, 576 So. 2d 288 (Fla.1991). The conviction and 'sentence for the second count of burglary with an assault (count four) are therefore vacated. Similarly, we agree that the written sentence as to count seven, grand theft, must be amended to eliminate the minimum mandatory term which was specifically not imposed orally by the trial court. With these two exceptions, the convictions and sentences under review are affirmed.
Affirmed in part, reversed in part.
. The dire consequences of depriving trial lawyers of the "pound the facts-pound the law-pound the table" argument might well include the end of the criminal justice system as we know it. We would not want to be responsible for such a catastrophe. (Or would we?)
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Datoral Smith v. State, 741 So. 2d 579 (Fla. 3d DCA 1999)…hat one of the two counts of burglary with an assault should be vacated. The defendant was improperly charged and convicted of two counts of burglary with an assault on the basis of attacks on two separate victims within the home. De Jesus v. State, 684 So. 2d 875, 876 (Fla. 3d DCA 1996). [*580] As to the defendant s third point on appeal, that Ms plea agreement is illegal as it was agreed to on the basis of a miscalculated scoresheet, the State concedes that the scoresheet was miscalculated. On defendant’s s…
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Goodman v. State, 801 So. 2d 1012 (Fla. 4th DCA 2001)…an objected, on the grounds that the last comment constituted improper argument. The objection was overruled. We agree with the trial court’s ruling and find the single objected-to comment did not constitute improper argument. See DeJesus v. State, 684 So. 2d 875, 876 (Fla. 3d DCA 1996)(finding no error where prosecutor argued defense was “attacking the credibility of witnesses, because they don’t have the facts, and they don’t have the law”); cf. Barnes v. State, 743 So. 2d 1105, 1106 (Fla. 4th DCA 1999) (h…
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Soanes v. State, 31 So. 3d 914 (Fla. 4th DCA 2010)…cterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.”). We further find that the state’s closing argument did not ridicule the defendant’s theory of defense. See De Jesus v. State, 684 So. 2d 875, 876 (Fla. 3d DCA 1996) (“We think that these comments ... were within the range of appropriate advocacy and therefore not erroneous, much less so beyond the pale as to vitiate the trial entirely and require a new one.”). However, the trial court e…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Bonifay v. State, 680 So. 2d 413 (Fla. 1996)
- Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982)
- Troedel v. State, 462 So. 2d 392 (Fla. 1984)
- King v. State, 623 So. 2d 486 (Fla. 1993)
- McKAY v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986)
- R.G.B. v. State, 376 So. 2d 1230 (Fla. 2d DCA 1979)
- Burkhead v. Dade Cnty. Bd. OF Pub. Instruction, 376 So. 2d 1230 (Fla. 3d DCA 1979)
- Small v. State, 574 So. 2d 1119 (Fla. 2d DCA 1990)
- Heinz v. State, 615 So. 2d 238 (Fla. 3d DCA 1993)