DANIEL WEEKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Defendant appeals his conviction of aggravated assault. We affirm.
In closing argument the prosecutor commented on the fact that a particular witness had not testified and was conveniently out of the State. Defendant objected but did not move for a mistrial. On appeal defendant asserts fundamental error and contends the trial court should have declared a mistrial.
The issue in the case was whether the defendant had used a knife in a fight. Defendant and another defense witness testified that the absent witness was the real knife wielder. The prosecutor’s comment about the absence of the witness who had obvious knowledge concerning this fact was thus proper argument. The defendant himself injected this issue and cannot now complain that the State was precluded from mentioning the absence of the witness. Buckrem v. State, 355 So. 2d 111 (Fla.1978); Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975); Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1957).
The judgment is affirmed.
ANSTEAD, DAUKSCH and BERANEK, JJ., concur.
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Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)…the true perpetrator of the offense with which the defendant was charged. This court held that comment by the prosecuting attorney on defendant’s failure to produce “the true perpetrator” to testify was not reversible error. See also Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1978) (defendant testified that absent witness was real perpetrator). The rationale which emerges from these cases is that a prosecuting attorney may comment upon the failure of the defense to call a witness who has been demonstrated…
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Love v. State, 569 So. 2d 807 (Fla. 1st DCA 1990)…estify in a manner which is favorable to the defendant’s theory of the case. The issue may [*811] be interjected into the proceeding either in opening remarks or through testimony. Dunbar v. State, 458 So. 2d 424 (Fla. 2nd DCA 1984); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1975); Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975). In the instant case, the principal issue was the sanity of the defendant at the time of the crime. The defense counsel solicited testimony on cross-examination from which a j…
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Dixon v. State, 430 So. 2d 949 (Fla. 3d DCA 1983)…o. 2d 471 (Fla.1979); Gilbert v. State, 362 So. 2d 405 (Fla. 1st DCA 1978); Young v. State, 280 So. 2d 13 (Fla. 2d DCA 1973) with Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980), pet. for review denied, 397 So. 2d 778 (Fla.1981); Weeks v. State, 363 So. 2d 176 (Fla. 4th DCA 1978), Shapiro v. State, 345 So. 2d 361 (Fla. 3d DCA), cert. denied, 353 So. 2d 678 (Fla.1977); Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975), dismissed, 330 So. 2d 725 (Fla.1976) (the state may comment on the failure of the defen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Express, Inc. v. Hawkins, 355 So. 2d 111 (Fla. 1977)
- Jenkins v. State, 317 So. 2d 90 (Fla. 1st DCA 1975)
- Allen v. State, 320 So. 2d 828 (Fla. 4th DCA 1975)