Brown v. State , 284 So. 2d 453 ( 1973 )

284 So. 2d 453 (1973)

James BROWN, Appellant,
v.
The STATE of Florida, Appellee.

No. 73-203.

District Court of Appeal of Florida, Third District.

October 16, 1973.

Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Legal Intern, for appellee.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

On this appeal from his conviction of breaking and entering a building and of attempt to commit grand larceny, the appellant seeks a new trial because of certain remarks by the prosecutor in argument, to which objection by defendant was overruled.

In testifying, the defendant had admitted three prior convictions. The alleged remarks of the prosecutor included the following: "This is a guy who is desperate. He is a desperate crook, a three time loser. * * * There is absolutely no way that you can review all of this testimony in your mind fairly and objectively, because you all said you would disregard sympathy and pity. There is a reasons for that. The first reason is that when you start thinking about sympathy or pity, it clouds your mind to the evidence. The second reason for it is that this little thief does'nt deserve your sympathy." (Italics ours.)

"Mr. Long: Objection to that phraseology, Your Honor, `this little thief.'

"The Court: Overruled."

We hold that because of the prosecutor's comments to the jury, the plaintiff's right and opportunity to a fair trial was prejudiced, so as to require reversal, on authority of Davis v. State, Fla.App. 1968, 214 So. 2d 41; Fitzgerald v. State, Fla.App. 1969, 227 So. 2d 45; Sherman v. State, Fla. 1971, 255 So. 2d 263.

Judgment reversed and cause remanded for new trial.