Rivero v. State, 3D99-442.

Decision Date08 March 2000
Docket NumberNo. 3D99-442.,3D99-442.
Citation752 So.2d 1244
PartiesRafael RIVERO, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

752 So.2d 1244

Rafael RIVERO, Appellant,
The STATE of Florida, Appellee

No. 3D99-442.

District Court of Appeal of Florida, Third District.

March 8, 2000.

Bennett H. Brummer, Public Defender, and Andrew Stanton and Maria E. Lauredo, Assistant Public Defenders, for appellant.

Robert A. Butterworth, Attorney General, and Regine Monestime, Assistant Attorney General, for appellee.



Rafael Rivero appeals his convictions on two counts of attempted second degree murder with a firearm. We affirm in part and reverse in part.

During the State's closing argument, the prosecutor made a litany of improper closing arguments, where the trial court sustained objections eight times. These included a claim that a witness to the crime avoided service of process, a fact not in evidence in the case; what amounted to a "conscience of the community" argument; disparaging attacks on defense counsel and the defense of the case; and vouching for credibility of one of the prosecution witnesses. See Ruiz v. State, 743 So.2d 1, 4 (Fla.1999); Gomez v. State, 751 So.2d 630 (Fla. 3d DCA 1999); Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So.2d 838, 842 (Fla. 3d DCA 1998).

There was an unobjected-to claim that someone had gotten a witness to change his testimony, which was a clear suggestion that the defense had tampered with the witness. There was a comment apparently suggesting that the State had additional facts, not in evidence, regarding a controversy between the victims and the defendant the night before the shooting. See Ruiz, 743 So.2d at 4; Ford v. State, 702 So.2d 279, 280 (Fla. 4th DCA 1997).

As we are unable to say that the comments were harmless based on the facts of the present case, we conclude that the defense motion for mistrial should have been granted. See Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990). We trust that the prosecutor will not repeat any of these impermissible closing arguments at the retrial.

The defendant also argues that the offense of attempted second degree murder is a nonexistent offense under Florida law. We reject this claim, and affirm on this issue, on authority of Gentry v. State, 437 So.2d 1097 (Fla.1983), Pitts v. State, 710 So.2d 62 (Fla. 3d DCA 1998), and Lopez v. State, 742 So.2d 531 (Fla. 3d DCA 1999). However, the Florida Supreme Court has accepted jurisdiction in Brown v. State, 733 So.2d 598 (Fla. 5th DCA 1999), review granted, 744 So.2d...

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13 cases
  • Yisrael v. Sec'y, Case No. 3:15-cv-1360-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 16, 2018
    ...cites authority establishing the boundaries of propriety duringPage 26 closing arguments. Among these, Defendant cites Rivero v. State, 752 So. 2d 1244 (Fla. 3d DCA 2000) for the notion that prosecutors must not make comments that cannot be reasonably inferred from the evidence in the recor......
  • Johnnides v. Amoco Oil Co., Inc., No. 3D00-1289
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 2001
    ...of vouching for the truthfulness of his own case. But see Caraballo v. State, 762 So.2d 542 (Fla. 5th DCA 2000); Rivero v. State, 752 So.2d 1244 (Fla. 3d DCA 2. While in light of Hightower's egregious conduct, we feel duty bound by Canon 3D(2), Code of Judicial Conduct hereby to report him ......
  • Bell v. State, 1D98-3035.
    • United States
    • Court of Appeal of Florida (US)
    • August 7, 2000
    ...v. State, 25 Fla. L. Weekly D595, ___ So.2d ___, 2000 WL 242263 (Fla. 1st DCA Mar.6, 2000) (certifying same question); Rivero v. State, 752 So.2d 1244, 1245 (Fla. 3d DCA 2000) (same); Brown v. State, 733 So.2d 598, 599 (Fla. 5th DCA) (same), review granted, 744 So.2d 452 (Fla. Affirmed in p......
  • Lewis v. State, No. 3D98-2039
    • United States
    • Court of Appeal of Florida (US)
    • January 24, 2001
    ...process has been compromised and the resulting convictions and sentences irreparably tainted. Id. at 7. See also Rivero v. State, 752 So.2d 1244 (Fla. 3d DCA The first two comments that drew objections concerned attacks on defense counsel based on his cross of McPhee: Do you recall the abus......
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