Opinion
No. 97-2017.
Opinion filed April 15, 1998. JANUARY TERM, A.D. 1998.
An Appeal from the Circuit Court for Dade County, Ellen J. Morphonios, Judge. L.T. No. 96-24943.
Bennett H. Brummer, Public Defender and Manuel Alvarez, Special Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General and Christine E. Zahralban, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
The sole claim of trial error on this appeal from a conviction for attempted first degree murder stems from the prosecutor's comment in final argument concerning the defendant's failure to take the stand. The record shows, however, that the remark was in fair rebuttal to the defense argument. See Brown v. State, 367 So.2d 616 (Fla. 1979). Moreover, the only relief sought below was granted by the trial judge in the form of sustaining an objection to the comment and, as requested, explicitly instructing the jury to disregard it. In the absence of a motion for mistrial or fundamental error, which we do not find, reversal is not justified on this ground. Simpson v. State, 418 So.2d 984 (Fla. 1982), cert. denied, 459 U.S. 1156 (1983); Wyatt v. State, 578 So.2d 811 (Fla. 3d DCA 1991), review denied, 587 So.2d 1331 (Fla. 1991); Harris v. State, 564 So.2d 1211 (Fla. 3d DCA 1990), review denied, 576 So.2d 287 (Fla. 1990), cert. denied, 500 U.S. 924 (1991).
The defendant also argues, and both the state and we agree, that because only one victim and one offense were involved, the defendant was improperly assessed 80, rather than 40 sentencing points for "severe" victim injury. Fla.R.Crim.P. 3.701 (d)(7); see Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 576 So.2d 1307 (Fla. 1991).
Accordingly, the sentence imposed below is vacated and the case is remanded to resentence the defendant under a corrected scoresheet.
Affirmed in part, vacated in part, and remanded.