Davis v. State

579 So. 2d 418, 1991 Fla. App. LEXIS 4782, 1991 WL 86818

Opinion

PER CURIAM.

We affirm the conviction of appellant. While the prosecutor did make a comment on appellant’s right to remain silent in his closing argument, appellant’s counsel did not object and thus did not preserve the error for appeal. Clark v. State, 363 So.2d 331 (Fla.1978), receded from on other grounds, State v. DiGuilio, 491 So.2d 1129 (Fla.1986). In addition, the objection to the identification of appellant was also not preserved for review. Douglas v. State, 328 So.2d 18 (Fla.1976).

We also affirm the sentence as an habitual offender. However, we remand for correction of the “Order Finding Defendant to be an Habitual Violent Felony Offender.” At the sentencing hearing and on the written sentence, the court found appellant to be only an habitual offender. Therefore, the order enumerating reasons must be corrected to find that the court was sentencing as an habitual offender, not an habitual violent offender.

ANSTEAD, STONE and WARNER, JJ., concur.