Opinion
No. 93-0800.
May 11, 1994.
Appeal from the Circuit Court, Palm Beach County, Mary E. Lupo, J.
Richard L. Jorandby, Public Defender, and David McPherrin, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
The opinion of this court filed January 19, 1994, is withdrawn and the following opinion is substituted. The motions for rehearing are denied.
The prosecutor made a comment in closing argument which defendant argues requires a new trial. The sole argument advanced by the state for affirmance is that the trial court sustained defendant's objection to the remark, and that the defendant did not move for a mistrial. Although the state does not mention it in its brief, our review of the transcript reveals that the defendant put on evidence which supports the prosecutor's comment. Had we not discovered this, we might well have reversed, because the comment, standing alone, is improper and prejudicial. Even with the evidentiary basis, the comment may have gone too far; however, the court did sustain the objection and there was no request for a curative instruction. In addition, we have reviewed the evidence and concluded that it could not have affected the verdict. We therefore affirm. See United States v. Hernandez, 865 F.2d 925, 927-928 (7th Cir. 1989).
WARNER, KLEIN and PARIENTE, JJ., concur.