Opinion
No. AK-175.
October 21, 1982.
Appeal from the Circuit Court, Duval County, Major B. Harding, J.
Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
Brown was convicted of armed robbery and sentenced to an enhanced 90 years imprisonment. The trial court retained jurisdiction over the first 30 years of the sentence. Brown contends that the trial court erred in overruling his objection to a comment made by the State's attorney during closing argument. We affirm.
During closing argument, Brown's attorney commented on the failure of the State to call a witness. In response, the State's attorney stated that Brown had the same right as the State to subpoena the witness. The trial court overruled the objection of Brown's attorney that the State had the burden of proving Brown guilty.
Brown opened the door to the comment made by the State's attorney. The State's response was fair comment. The objection was properly overruled. The trial court subsequently correctly instructed the jury on the State's burden.
Brown urges that the trial court improperly enchanced the sentence imposed on him. The State agrees. We are compelled to dismiss this issue because there was no objection by Brown to the sentence. However, we dismiss without prejudice to Brown urging this issue by a Rule 3.850 motion. Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). In view of this disposition, it is unnecessary that we dispose of the other issues raised by Brown.
Affirmed in part and dismissed in part.
ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.