lack of objection exception in Florida

2001While the State correctly points out that Brown's attorney failed to object to the numerous improper comments made by the prosecutor in closing argument, we must look at the entire trial record and adhere to the established law that "when the prosecutorial argument taken as a whole is of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception." DeFreitas v. State, 701 So.2d 593, 596 (Fla. 4th DCA 1997) (quoting Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984)).

1997In Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984), we answered the same question presented in the instant appeal, the question being: "When does prosecutorial misconduct amount to fundamental error and thus becomes an exception to the contemporaneous objection and motion for mistrial rule?" Our answer to this question has not changed and remains as follows: "When the prosecutorial argument taken as a whole is `of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or ex

1984When the prosecutorial argument taken as a whole is "`of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception.'" Peterson at 1234 , citing Ailer, supra .

1979Specifically, it is well established in Florida that when, as here, references in argument during a criminal trial are "of such character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception." Ailer v. State, 114 So.2d 348, 351 (Fla. 2d DCA 1959), and cases cited.

1979Our Supreme Court's holding in Pait v. State, 112 So.2d 380, 385 (Fla. 1959) is directly applicable: The general rule is that an alleged error based on improper argument to the jury will not be considered by an appellate court unless a timely objection was registered in the trial court.

1959Akin v. State, 1923, 86 Fla. 564 , 98 So. 609 ; Carlile v. State, 1937, 129 Fla. 860 , 176 So. 862 ; Oglesby v. State, 1945, 156 Fla. 481 , 23 So.2d 558 ; and Pait v. State, Fla. 1959, 112 So.2d 380 .

2001While the State correctly points out that Brown's attorney failed to object to the numerous improper comments made by the prosecutor in closing argument, we must look at the entire trial record and adhere to the established law that "when the prosecutorial argument taken as a whole is of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception." DeFreitas v. State, 701 So.2d 593, 596 (Fla. 4th DCA 1997) (quoting Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984)).

2001See also Caraballo v. State, 762 So.2d 542, 547 (Fla. 5th DCA 2000) (holding that fundamental error occurs in closing when the "prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury").

1997In Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984), we answered the same question presented in the instant appeal, the question being: "When does prosecutorial misconduct amount to fundamental error and thus becomes an exception to the contemporaneous objection and motion for mistrial rule?" Our answer to this question has not changed and remains as follows: "When the prosecutorial argument taken as a whole is `of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or ex