Allen v. State , 320 So. 2d 828 ( 1975 )

320 So.2d 828 (1975)

Michael Guy ALLEN, Appellant,
v.
STATE of Florida, Appellee.

No. 75-441.

District Court of Appeal of Florida, Fourth District.

October 24, 1975.

Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., and Carl Schwait, Legal Intern, Miami, for appellee.

PER CURIAM.

Defendant appeals his sentence and conviction on the grounds that the prosecutor improperly noted to the jury that defense did not call a certain person as a witness. This is error, and sometimes reversible error. Kirk v. State, 227 So.2d 40 (4th DCA Fla. 1969). However, in this case, the defense counsel in opening argument made several heavy and pointed references to that certain person, with the clear inference that such person was the true malefactor. We find the prosecutor's remarks in response were not reversible error, and follow our decision in Dixon v. State, 206 So.2d 55 (4th DCA Fla. 1968):

"The argument by the prosecuting attorney was invited by the argument made by the defendant's attorney and was not prejudicial to a fair trial." Id. at 58.

We find defendant's remaining point on appeal also without merit.

Affirmed.

WALDEN, C.J., and CROSS and OWEN, JJ., concur.