Aja v. State

PER CURIAM. Appellant, Emir H. Aja, appeals his convictions and sentences for aggravated assault and for carrying a concealed weapon after he threatened to use a gun on a person who was harassing him for failing to move his truck. We affirm in part and reverse in part. During closing argument, the prosecutor made a number of arguments that were improper, only one of which was objected to, however. During closing, the prosecutor read to the jury deposition testimony of a witness who had testified live at trial. Although portions of the deposition testimony had been used by defense counsel for impeachment, the testimony read to the jury had not been published during the course of the trial. It is plainly error for counsel to present facts to the jury in closing that have not been presented to the jury in the taking of evidence. Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994); Crayton v. State, 536 So.2d 399 (Fla. 5th DCA 1989). It is impossible for us to determine that this improper closing argument did not affect the jury’s deliberations with respect to the aggravated assault charge. Accordingly, we reverse and remand to the lower court for a new trial on this charge. The conviction for carrying a concealed weapon is affirmed. See Hill v. State, 593 So.2d 290 (Fla. 2d DCA 1992). We note, however, although not mentioned in the briefs, that appellant appears to have been incorrectly sentenced on the concealed weapon charge. On remand, this should be corrected. AFFIRMED IN PART; REVERSED IN PART; and REMANDED. W. SHARP, GOSHORN and GRIFFIN, JJ., concur.