Weeks v. State

363 So.2d 176 (1978)

Daniel WEEKS, Appellant,
v.
STATE of Florida, Appellee.

No. 77-1365.

District Court of Appeal of Florida, Fourth District.

October 11, 1978.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Defendant appeals his conviction of aggravated assault. We affirm.

In closing argument the prosecutor commented on the fact that a particular witness had not testified and was conveniently out of the State. Defendant objected but did not move for a mistrial. On appeal defendant asserts fundamental error and contends the trial court should have declared a mistrial.

The issue in the case was whether the defendant had used a knife in a fight. Defendant and another defense witness testified that the absent witness was the real knife wielder. The prosecutor's comment about the absence of the witness who had obvious knowledge concerning this fact was thus proper argument. The defendant himself injected this issue and cannot now complain that the State was precluded from mentioning the absence of the witness. Buckrem v. State, 355 So.2d 111 (Fla. 1978); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1957).

The judgment is affirmed.

ANSTEAD, DAUKSCH and BERANEK, JJ., concur.