Brinson v. State

364 So. 2d 66, 1978 Fla. App. LEXIS 16543

Opinion

PER CURIAM.

Defendant appeals asserting error regarding the State’s closing argument. In closing the prosecutor commented on defendant’s failure to call certain witnesses. The trial court correctly overruled an objection to this argument. The prosecutor’s comment about the absence of witnesses who had obvious knowledge of the defense asserted by defendant was not improper. See, Buckrem v. State, 355 So.2d 111 (Fla.1978); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975), and Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975).

The judgment is, however, subject to attack because it provides for a sentence at hard labor. McDonald v. State, 321 So.2d 453 (Fla.4th DCA 1975). The judgment is modified by deletion of the reference to hard labor and is hereby affirmed as modified.

AFFIRMED as MODIFIED.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.