ALLEN FOXWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of sale and possession of cocaine and challenged both his convictions and sentence. The court found no prosecutorial misconduct in closing argument but reversed the sentence because the trial court used an erroneous scoresheet that improperly included dismissed offenses, resulting in imposition of a more severe sentence.
The prosecutor's closing argument regarding officer safety was proper and responsive to defense counsel's attacks on police investigation. However, the trial court erred in sentencing appellant using a scoresheet that improperly included points for dismissed offenses, which extended appellant's incarceration beyond what was appropriate.
[1] A prosecutor's closing argument is afforded wide discretion.
[2] A prosecutor's argument in closing that addresses defense counsel's attempts to portray police work as shoddy is a proper comment on the evidence.
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Join FLexlaw to unlock all legal intelligence“counsel is accorded wide discretion in closing argument”
Establishes the general standard for reviewing prosecutorial closing arguments
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of sale and possession of cocaine following a street bust. The sentencing scoresheet included points for two offenses that had…
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CAMPBELL, Acting Chief Judge.
Appellant was convicted of sale and possession of cocaine following a street bust. He challenges both his convictions and his sentence. We find no merit in appellant’s first issue, the prosecutor’s allegedly improper comment. However, because the court did err in sentencing appellant using an erroneous scoresheet, we remand for the trial court to resentence appellant under a corrected scoresheet.
Appellant argues first that the prosecutor improperly argued in closing that during this street bust, the safety of the officers involved was a matter of some concern. We note first that counsel is accorded wide discretion in closing argument. See Thomas v. State, 326 So. 2d 413 (Fla.1975). Moreover, the prosecutor’s argument here was directed at defense counsel’s attempts to portray the police work as shoddy and incomplete. Defense counsel argued repeatedly that law enforcement had failed to videotape or photograph the scene. The prosecutor’s arguments were merely an attempt to explain why the officers had not videotaped or photographed the scene. There is no error here. The prosecutor’s argument was proper comment on the evidence. See Tarrant v. State, 537 So. 2d 150 (Fla. 2d DCA 1989).
Appellant argues next that the court erred in sentencing him using an erroneous scoresheet. Although appellant failed to raise this issue below, we believe that under Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999), this was fundamental error because the error improperly extended appellant’s incarceration.
Appellant was sentenced to the minimum range of his guidelines score, 34.35 months’ imprisonment. However, the scoresheet was improperly calculated be cause it included points for two offenses that had been previously dismissed. The correct minimum score, after the two offenses were removed, was 32.4 months’ imprisonment. Given the fact that the court apparently intended to sentence appellant to the bottom of the guidelines, we cannot say that the inclusion of the two offenses and the additional scoresheet points did not result in imposition of a more severe sanction. Accordingly, we remand for resentencing.
THREADGILL and STRINGER, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Thomas v. State, 326 So. 2d 413 (Fla. 1975)
- Tarrant v. State, 537 So. 2d 150 (Fla. 2d DCA 1989)