ROBERT K. PACETTI, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No.
Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach,
Robert Pacetti, appeals his judgment and sentence for one
count of felony battery (great bodily harm, permanent
disability, or permanent disfigurement) and one count of
felony battery (prior conviction). Appellant argues that
reversal is warranted because the prosecutor made an improper
comment during closing and his judgment erroneously reflects
that he was convicted of felony battery (prior conviction).
We affirm on the closing comment issue but reverse and remand
for the correction of Appellant's judgment.
was arrested and charged with one count of felony battery
(great bodily harm, permanent disability, or permanent
disfigurement) and one count of felony battery (prior
conviction) after he allegedly battered one of his employees.
Prior to trial, Appellant argued that the State could not
proceed on both charges because of double jeopardy concerns.
The State conceded Appellant's position and announced
that it was nolle prossing the felony battery based on a
prior conviction count and proceeding to trial on the felony
battery causing great bodily harm count only.
trial, the victim testified that on the day in question he
met up with Appellant, Appellant's then girlfriend, and
one of Appellant's employees at Appellant's
girlfriend's house. The four then drove to a bar in
Appellant's vehicle. At the bar, Appellant approached the
victim and asked, in a nonthreatening manner, to speak with
him outside. The victim followed Appellant outside where
Appellant proceeded to punch the victim in the face. The
victim fell to the ground and Appellant kicked him several
times. Eventually, a bartender came outside and broke up the
fight. Appellant, the girlfriend, and the employee then left
without the victim. Later in the day, the victim returned to
Appellant's girlfriend's house to retrieve his
transportation. There, the victim claimed that Appellant
attacked him again. After the altercation, the victim went to
the hospital where he was treated for a fractured pelvis and
a broken wrist.
victim contacted law enforcement about the incident about a
month later. The investigator testified that after
interviewing the victim, he tried to interview
Appellant's girlfriend and employee, but that neither
were cooperative. He also interviewed Appellant who, after
initially denying that there was an altercation, admitted to
"slapping" the victim after they got into a fight
position was that the victim instigated a physical
altercation because he was mad Appellant would not front him
money. To support his defense that the victim was the
aggressor, Appellant testified on his own behalf. He
explained that as he was walking out of the bar, the victim
swung at him. Appellant fell while avoiding the blow, but the
victim continued to come at him. Appellant then kicked the
victim in self-defense. Shortly thereafter, the bartender
came out and broke up the fight. At that point, Appellant,
his girlfriend, and his employee got into Appellant's
truck and drove away. That was the last Appellant saw the
closing arguments, the prosecutor sought to discredit
Appellant's version of the events, with the following
The only people that witnessed the second attack is the
defendant's employee, and his girlfriend at the time, now
his wife . . . . Neither one of them would cooperate with the
police. That makes absolutely zero sense. Why would these two
witnesses not want to cooperate with police? It just
doesn't make any sense if what the defendant says is
objected on the grounds that the prosecutor made an improper
burden shifting argument, and the court overruled his
objection. The prosecutor continued:
[Why did] these two main witnesses, who witnessed the
incident, not to want to talk to the police? I want you to
think about that when you are back there deliberating. Why
would they not want to cooperate with ...