BILLY BAKER v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed May 24, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0236
Lower Tribunal No. 18-97-A-K
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Billy Baker,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Monroe County, Mark H. Jones,
Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez,
Assistant Attorney General, for appellee.
Before SCALES, MILLER and BOKOR, JJ.
PER CURIAM.
Affirmed. See Andres v. State, 254 So. 3d 283, 300 (Fla. 2018) (“While
the State cannot comment on the defendant’s failure to present evidence,
there is no impropriety in observing, in response to arguments made by the
defense, that the defense’s theory of the case is not supported by actual
evidence.”); Noriega v. State, 228 So. 3d 170, 172 (Fla. 3d DCA 2017)
(“Where the defendant presents and argues for its theory of the case, the
state is permitted to respond (if true) that the defendant’s theory is not
supported by the evidence at trial.”); Lubin v. State, 963 So. 2d 822, 823–24
(Fla. 4th DCA 2007) (finding that comment that there was not “one bit of
evidence” creating alternative explanation for defendant’s fingerprint at crime
scene was “fair comment on uncontroverted evidence” and not improper
burden-shifting); see also Rivera v. State, 840 So. 2d 284, 287 (Fla. 5th DCA
2003) (“In order to determine whether improper remarks constitute reversible
error, they should be reviewed within the context of the closing argument as
a whole and considered cumulatively within the context of the entire record.”)
(citation and quotation omitted).
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