Rodriguez v. State

493 So. 2d 1067 (1986)

Orestes RODRIGUEZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 85-2562.

District Court of Appeal of Florida, Third District.

September 2, 1986. Rehearing Denied October 1, 1986.

Jon W. Burke, Miami, for appellant.

Jim Smith, Atty. Gen., and Lisa A. Rosenthal and Margarita M. Febres, Asst. Attys. Gen., for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

We reject the defendant's contention that he was entitled to the entry of a judgment of acquittal on the ground that the evidence was insufficient to sustain his first-degree murder conviction. We also reject his alternative contention that the prosecutor's misstatement of the law during closing argument — "If you believe [the defendant's story] is not credible and if you believe he took the stand and didn't tell the truth, he is guilty of first degree murder" — could only be remedied by the grant of the defendant's request for a mistrial. We conclude instead that the harm of the unquestionably erroneous remark was capable of being cured by an instruction to the jury, and although the instruction given — namely, to disregard the remark — is arguably less than adequate, if the defendant was dissatisfied with the instruction, it was his burden to request a more adequate one.

Affirmed.