Jackson v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JERMAINE JOHNSON, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) ________________________________ ) Case No. 2D04-4843 Opinion filed October 7, 2005. Appeal from the Circuit Court for Polk County; Susan W. Roberts, Judge. James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. We affirm. As in Bethea v. State, No. 2D04-4036 (Fla. 2d DCA Sept. 23, 2005), we write only to comment on the improper conduct of the prosecutor in delivering his closing argument. Although the prosecutor s remarks do not constitute fundamental error, they evince a clear lack of respect for the court, deserving of admonition. On more than one occasion, the prosecutor attempted to argue facts not in evidence. Although cautioned by the trial judge, he continued his course of conduct prompting the judge to threaten him with contempt: Leave it alone, I m warning you. Do not mess with me. I may have to find you in contempt of court. Leave it alone. Can you do that? Unfortunately, we find it necessary to once again reiterate what every officer of the court should recognize: Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar. Luce v. State, 642 So. 2d 4 (Fla. 2d DCA 1994) (Blue, J., concurring specially). Finally, we suggest that this prosecutor view continuing legal education videotapes regarding the rules of proper argument. See Bell v. State, 723 So. 2d 896, 897 (Fla. 2d DCA 1998) (Altenbernd, J., concurring). If he continues with the antics displayed in this case in future criminal trials, appropriate sanctions should be levied. Id. at 897. Affirmed. ALTENBERND, CASANUEVA, and KELLY, JJ., Concur. -2-

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