REGINALD WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction for attempted first-degree murder but vacated and remanded for resentencing because the trial court improperly assessed 80 sentencing points instead of 40 for victim injury when only one victim and one offense were involved.
A prosecutor's comment on a defendant's failure to testify, when made in fair rebuttal to defense argument and promptly sustained by objection with jury instruction to disregard, does not warrant reversal absent a motion for mistrial or fundamental error.
[1] A prosecutor's comment on a defendant's failure to testify, when made in fair rebuttal to defense argument and promptly objected to with jury instruction to disregard, do…
[2] Under Florida sentencing guidelines, when only one victim and one offense are involved, a defendant may not be assessed eighty sentencing points for severe victim injury;…
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Join FLexlaw to unlock all legal intelligence“the remark was in fair rebuttal to the defense argument”
Court explaining why prosecutor's comment on defendant's failure to testify did not constitute reversible error
Williams was convicted of attempted first-degree murder. During final argument, the prosecutor commented on the defendant's failure to take the stand …
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SCHWARTZ, Chief Judge.
The sole claim of trial error on this appeal from a conviction for attempted first degree murder stems from the prosecutor’s comment in final argument concerning the defendant’s failure to take the stand. The record shows, however, that the remark was in fair rebuttal to the defense argument. See Brown v. State, 367 So. 2d 616 (Fla.1979). Moreover, the only relief sought below was granted by the trial judge by sustaining an objection to the comment and, as requested, explicitly instructing the jury to disregard it. In the absence of a motion for mistrial or fundamental error, which we do not find, reversal is not justified on this ground. Simpson v. State, 418 So. 2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Wyatt v. State, 578 So. 2d 811 (Fla. 3d DCA), review denied, 587 So. 2d 1331 (Fla.1991); Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA), review denied, 576 So. 2d 287 (Fla.1990), cert. denied, 500 U.S. 924, 111 S.Ct. 2031, 114 L.Ed.2d 116 (1991).
The defendant also argues, and both the state and we agree, that because only one victim and one offense were involved, the defendant was improperly assessed 80, rather than 40 sentencing points for “severe” victim injury. Fla.R.Crim.P. 3.701(d)(7); see Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 8.701 and 3.988), 576 So. 2d 1307 (Fla.1991).
Accordingly, the sentence imposed below is vacated and the case is remanded to resen-tence the defendant under a corrected score-sheet.
Affirmed in part, vacated in part, and remanded.
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Authorities Cited
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Fort Pierce Utils. Auth. v. Fed. Energy Regulatory Comm'n, 459 U.S. 1156 (U.S. 1983)
- Chaparro-Almeida v. United States, 459 U.S. 1156 (U.S. 1983)
- FLA. RULES OF CRIM. PROCEDURE RE: SENTENCING GUIDELINES (RULES 3.701 & 3.988), 576 So. 2d 1307 (Fla. 1991)
- Wyatt v. State, 578 So. 2d 811 (Fla. 3d DCA 1991)
- Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA 1990)
- Sherrills v. Celeste, 500 U.S. 924 (U.S. 1991)
- Robichaux v. Phelps, 500 U.S. 924 (U.S. 1991)