Avant v. State

District Court of Appeal of Florida

Avant v. State

538 So. 2d 99, 14 Fla. L. Weekly 391, 1989 Fla. App. LEXIS 559, 1989 WL 8357

CourtDistrict Court of Appeal of Florida

DecidedFebruary 7, 1989

DocketNo. 88-672

StatusPublished

Cited by2 cases

This text of 538 So. 2d 99 (Avant v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avant v. State, 538 So. 2d 99, 14 Fla. L. Weekly 391, 1989 Fla. App. LEXIS 559, 1989 WL 8357 (Fla. Ct. App. 1989).

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Opinion

SCHWARTZ, Chief Judge.

Neither of the appellant’s points is meritorious. The challenged portion of the prosecutor’s final argument¹ was a permissible reference to the absence of testimony to support the defendant’s factual contentions, rather than an impermissible comment on his failure to testify. State v. Sheperd, 479 So.2d 106 (Fla.1985); White v. State, 377 So.2d 1149 (Fla.1979).

Secondly, because the respective crimes involve separate factual predicates and legal elements and are designed to meet different evils, there is nothing to the claim that, under Carawan v. State, 515 So.2d 161 (Fla.1987), a defendant may not be convicted of both burglary, that is, entering another’s premises with the intent to commit the offense of robbery, and the robbery itself. Taylor v. State, 138 Fla. 762, 190 So. 262 (1939); Johnson v. State, 535 So.2d 651 (Fla. 3d DCA 1988), and cases cited; see Few v. State, 533 So.2d 914 (Fla. 2d DCA 1988).

AFFIRMED.

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SCHWARTZ, Chief Judge.

Neither of the appellant’s points is meritorious. The challenged portion of the prosecutor’s final argument¹ was a permissible reference to the absence of testimony to support the defendant’s factual contentions, rather than an impermissible comment on his failure to testify. State v. Sheperd, 479 So.2d 106 (Fla.1985); White v. State, 377 So.2d 1149 (Fla.1979).

Secondly, because the respective crimes involve separate factual predicates and legal elements and are designed to meet different evils, there is nothing to the claim that, under Carawan v. State, 515 So.2d 161 (Fla.1987), a defendant may not be convicted of both burglary, that is, entering another’s premises with the intent to commit the offense of robbery, and the robbery itself. Taylor v. State, 138 Fla. 762, 190 So. 262 (1939); Johnson v. State, 535 So.2d 651 (Fla. 3d DCA 1988), and cases cited; see Few v. State, 533 So.2d 914 (Fla. 2d DCA 1988).

AFFIRMED.

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Bluebook (online)

538 So. 2d 99, 14 Fla. L. Weekly 391, 1989 Fla. App. LEXIS 559, 1989 WL 8357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avant-v-state-fladistctapp-1989.

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