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 ________________

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).