BILLY BAKER v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: May 24, 2023
• Docket: 22-0236
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 24, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-0236 Lower Tribunal No. 18-97-A-K ________________

Billy Baker, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

Before SCALES, MILLER and BOKOR, JJ.

PER CURIAM. Affirmed. See Andres v. State, 254 So. 3d 283, 300 (Fla. 2018) (“While

the State cannot comment on the defendant’s failure to present evidence,

there is no impropriety in observing, in response to arguments made by the

defense, that the defense’s theory of the case is not supported by actual

evidence.”); Noriega v. State, 228 So. 3d 170, 172 (Fla. 3d DCA 2017)

(“Where the defendant presents and argues for its theory of the case, the

state is permitted to respond (if true) that the defendant’s theory is not

supported by the evidence at trial.”); Lubin v. State, 963 So. 2d 822, 823–24

(Fla. 4th DCA 2007) (finding that comment that there was not “one bit of

evidence” creating alternative explanation for defendant’s fingerprint at crime

scene was “fair comment on uncontroverted evidence” and not improper

burden-shifting); see also Rivera v. State, 840 So. 2d 284, 287 (Fla. 5th DCA

2003) (“In order to determine whether improper remarks constitute reversible

error, they should be reviewed within the context of the closing argument as

a whole and considered cumulatively within the context of the entire record.”)

(citation and quotation omitted).