Major FL Court Blasts “Prosecutorial Misconduct,” REVERSES Capital Sexual Battery Conviction

April 24, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 5th District Court of Appeal reversed a defendant’s capital sexual battery conviction after a prosecutor’s many improper comments during closing arguments potentially influenced the jury’s verdict.

CASE: D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999)

Charge(s): Capital Sexual Battery

Outcome: Conviction REVERSED, as various improper remarks made by a prosecutor during closing argument violated D’Ambrosio’s right to a fair trial.

Sexual Battery in Florida

In Florida, sexual battery is an extremely serious FELONY charge. Sexual battery – colloquially referred to as “rape” – occurs in either of the following situations:

• Someone orally, anally or vaginally penetrates a victim with a sexual organ or object, and does so WITHOUT the victim’s consent
• Someone has the victim penetrate them in such manner (without the victim’s consent)

Consent exists when someone 18 years of age or older engages in a sexual act of their own free will, without being forced or coerced. A person does NOT have to physically resist for a lack of consent to occur – and minors (under 18) cannot consent to sex as a matter of law. Coley v. State, 616 So.2d 1017 (Fla. 3d. DCA 1993)

The potential penalties for sexual battery are extremely serious, as it’s one of the major FELONY offenses under Florida law. The following potential penalties for sexual battery apply:

• Victim under 12, defendant 18+: Sexual battery is punishable by death or a mandatory minimum of life in prison. Though the Florida and U.S. Supreme Courts have held the death penalty unconstitutional for rape that does not result in death, Florida authorizes it. Kennedy v. Louisiana, 554 U.S. 407 (2008); Buford v. State, 403 So. 2d 943 (Fla. 1981)
• Victim 12 or older but under 18, defendant 18+: A first-degree felony punishable by up to 30 years in prison and a $10,000 fine, or up to life in prison with threat of violence or the use of a weapon.
• Victim under 18, defendant 18+ and in a position of familial or custodial authority: A first-degree felony punishable by life (PBL) in prison.
• Victim over 18, defendant over 18: A second-degree felony punishable by up to 15 years in prison and a $10,000 fine (enhanceable to more severe penalties if actual force or a weapon was used).

Some believe that if they commit sexual battery at a certain age, they may be eligible to AVOID the sex offender/sexual predator registry under Florida’s Romeo and Juliet law. But this is NOT the case, as a conviction for sexual battery (as opposed to a lewd or lascivious offense) makes a person automatically ineligible for that statutory relief. For more, click here.

Closing Arguments in Florida Criminal Trials

Closing arguments in Florida criminal trials are the last word the State and defense get before the jury is sent to deliberate after being instructed on the law by the judge. Closing arguments are especially important in sexual battery trials, as they can make the difference between a defendant facing decades of prison exposure or not (e.g. being found not guilty).

Though closing arguments CANNOT be viewed as evidence, this does not change the fact that a very effective closing argument can shape how the jury views the case. A strong closing provides a “lens” through which the jury can evaluate the case (e.g. evidence/testimony), and encourages them to render a verdict accordingly.

A good closing argument from an experienced and aggressive Florida criminal defense attorney will be made with the following goals:

• Making clear to the jury that REASONABLE DOUBT exists
• Drawing attention to any and all vulnerabilities in the State’s case that provide a basis for reasonable doubt

On a procedural note, many individuals believe that closing arguments involve the State (e.g. the prosecutor) speaking, before the defense gets the last word. But this is not entirely correct – as in Florida, closing arguments operate using a “sandwich” structure (Robbins v. State, 891 So.2d 1102 (Fla. 5th DCA 2004)):

• First, the State gives its initial closing
• Second, the defense gives its closing (which often will involve rebuttals of what the State said during its first argument)
• Finally, the State (e.g. prosecutor) gives a REBUTTAL CLOSING (which is the true “last word” before deliberations) to refute the defense’s closing statement

Because the defense does not go either first or last, the quality of the defense’s closing argument is especially important. Since the defense gets only ONE “bite at the apple,” a defense closing must be particularly powerful to maximize the chances of the jury viewing the defense favorably – rather than simply believing the last person they hear (e.g. the prosecutor).

Popular shows and movies tend to portray closing arguments as a “knock-down, drag-out” fight with no rules surrounding them. However, this is not the case. There are various restrictions on the nature of closing arguments (e.g. the kinds of arguments that can be made). But these rules are NOT always honored!

Since lawyers are people, “inflammatory” comments during closing may occur. However, if the State (prosecutor) breaks the rules and makes improper remarks, it is critical for the defense to OBJECT and preserve the issue for appellate review (which may lead to REVERSAL if the defendant is convicted).

Some examples of objectionable tactics employed during closing arguments include (Rodriguez v. State, 210 So.3d 750 (Fla. 5th DCA 2017)):

• Impugning the character of opposing counsel by calling them a “liar” or “evil”
• Calling the defendant ugly names/insulting them
• Relying on facts not in evidence or misrepresenting the law
• Commenting on the defendant’s right to remain silent (e.g. “If he wasn’t guilty, he would have said XYZ…”)
• Saying the case is about getting “justice” for the victim (Cardona v. State, 185 So.3d 514, 521 (Fla. 2016))
• GOLDEN RULE arguments (e.g. “Put yourself in the victim’s shoes and think about how scared they were… now find the defendant guilty.”)(Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990))

If the State relies upon one or more of these above tactics, this seriously risks that a mistrial will be declared (and a NEW TRIAL will be required in the case). Moreover, if a mistrial does NOT occur, the defendant’s conviction may be reversed and a new trial ordered due to the prosecutor violating their right to a fair trial via improper closing arguments. For more, click here.

The likelihood of a mistrial (or the defendant’s conviction being reversed by a Florida appellate court) significantly increases if the defense OBJECTS during a prosecutor’s closing arguments. This is because:

• WITH AN OBJECTION: Courts apply a “harmless error” analysis (e.g. if there was NO reasonable possibility the jury’s verdict was impacted by the comments) – if the improper remarks were not harmless error, a conviction requires reversal (Petruschke v. State, 125 So.2d 274 (Fla. 4th DCA 2013))
• WITHOUT AN OBJECTION: The improper comments are reviewed for fundamental error, which is a far higher standard (e.g. whether improper comments were so unfairly prejudicial that it made the jury’s verdict inherently illegitimate, per Brinson v. State, 153 So.3d 972 (Fla. 5th DCA 2015))

In one major Florida case, a defendant was arrested and charged with capital sexual battery – and was ultimately convicted. However, during closing arguments at trial, the prosecutor in the case made a series of improper remarks that included:

• Attacking the defendant’s attorney personally
• Talking about how the defense attorney was hoping to “confuse” the jury through the use of colorful metaphors
• Arguing “justice” in the case required finding the defendant guilty “for what everyone in the courtroom knows he did”

The defense largely stayed silent (did not object) during the closing argument, but this was only because the trial judge told the attorneys BEFORE closing arguments commenced that he “did not like” lawyers objecting during closings. 

On appeal, the defendant argued that the combination of the prosecutor’s improper, prejudicial remarks and the trial judge “hamstringing” the defense by urging them NOT to object required a new trial in his case – as the jury’s verdict was inherently tainted by the State’s misconduct.

Florida’s 5th District Court of Appeal (Northeast Florida’s highest court) AGREED with him and REVERSED his capital sexual battery conviction, remanding the matter to the lower court for a new trial. 

Let’s look at that case – D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) – and discuss what it means for those in Florida charged with sexual battery and concerned about violations of their right to a fair trial.

KEY CASE: D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999)

In D’Ambrosio, the defendant (D’Ambrosio) was charged with capital sexual battery (victim less than 12 years old, adult defendant). He was convicted. At trial, the following occurred:

• The evidence against the defendant was quite strong (according to the 5th DCA)
• During closing arguments, the prosecutor made a variety of improper comments 
• These included attacking the defense attorney (Bross) by characterizing his case as: “All of those unsupported innuendos, unconnected inferences and baseless speculation that Mr. Bross is praying that you will engage in.”
• The prosecutor added: “This is just not going to happen. I can use all the words I can about absurd, ridiculous. It’s just not going to happen, that type of thing, and there’s nothing in this case to support that. And everybody in this courtroom knows that.”
• The prosecutor also stated: “Mr. Bross points out why attack the defense attorney. I am not attacking him personally. … I did not say anything about his family. I’m not attacking him personally. I’m pointing out some of the things he did in this trial and his tactics he did in this trial. That’s what I’m pointing out to you. I’m not attacking him personally.”
• The prosecutor concluded by saying: “If you step back and look at the evidence in this case and not be inundated with the sea of confusion that Mr. Bross is praying you get inundated with. And there is no life raft in that sea. It is obvious. It is so apparent what justice is in this case, to find this defendant guilty for what everyone in this courtroom knows he did.”
• The defense did NOT object during the prosecutor’s closing and rebuttal because the trial judge specific implored the attorneys not to do so
• D’Ambrosio was found guilty as charged

On appeal, D’Ambrosio argued that the combination of the prosecutor’s improper PERSONAL ATTACKS on defense counsel – on top of the fact that the judge instructed him not to object (which would’ve preserved the record) – was fundamental error requiring that he receive a new trial. D’Ambrisio also criticized the prosecutor’s prohibited “justice for the victim” argument.

The 5th DCA AGREED with D’Ambrosio, REVERSING his capital sexual battery conviction and remanding the matter to the lower court for a new trial. The 5th DCA first noted the judge’s role in limiting objections, which played a role in allowing “fundamental error” to be found:

“In this case the problem of unobjected-to error, fundamental error, is not as much a problem as in others because at the beginning of final arguments at trial the judge instructed the attorneys “I don’t like it when lawyers object during closing arguments.” While this admonition did not prevent objections it certainly may have had a limiting effect. It could have kept objections out.”

Condemning the prosecutor’s misconduct and subtly encouraging the Florida Bar to initiate an investigation into the prosecutor, the 5th DCA concluded:

“It is improper to make derogatory comments about opposing counsel. It is improper for a lawyer to give a personal opinion as to either the justness of the cause or the guilt or innocence of the accused. R. Regulatory Fla. Bar 4–3.4(e). Repeatedly referring to the defendant’s defense as innuendo, speculation and “a sea of confusion” that defense counsel “prays you will get lost in” is an improper attack of the defense and defense counsel. Making the statement “I did not say anything about [the defense attorney’s] family,” is rather like asking the question when did you stop beating your wife. The denial of the attack is in itself tantamount to the attack. The prosecutor’s explanation of his earlier “yelling” to the jury with the rhetorical question “doesn’t that demonstrate to you the vigor and the conviction I have about the cause?” was a flagrant violation of the prohibition against stating a personal opinion as to the justness of the cause as well as an emotional plea to the jury to do the right thing.”

“Finally, more appeals to the jury’s emotions and the community conscience, further expressions of the prosecutor’s opinion, and an urging by the prosecutor to look at facts not in evidence are all seen in the prosecutor’s repeated admonitions to the jury to find the defendant guilty because everyone in the courtroom knows he’s guilty. It is very difficult to understand why an experienced prosecutor, which this one is, would act so unprofessionally, and why two other lawyers, the defense attorney and the judge, would permit such behavior to jeopardize a very sensitive trial for the most terrible of crimes. But as the sign on the desk of President Harry Truman declared, “The Buck Stops Here.” The judgment is reversed, the case remanded for retrial. As mentioned above, all appellate courts are becoming more sensitive to this type of misconduct and many appellate judges have urged The Florida Bar to take appropriate action. There is no indication the Bar has had any interest in the past. Perhaps the referral in Ruiz will instigate interest. If the Bar cares to act, it is free, of course, to do so without our having to make a specific referral. REVERSED and REMANDED.”

Judge Harris of the 5th DCA authored a concurring opinion encouraging the majority not just to subtly urge the Florida Bar to act, but submit a formal complaint against the prosecutor:

“I write to emphasize the strong policy relating to prosecutorial misconduct announced by our supreme court in Ruiz v. State, 1999 743 So.2d 1 (Fla. April 1, 1999): … ‘In spite of our admonishment in Hill and despite subsequent warnings that prosecutorial misconduct will be subject to disciplinary proceedings of The Florida Bar, we nevertheless continue to encounter this problem with unacceptable frequency. The present case follows on the heels of another misconduct case and is one of the worst examples we have encountered. The conduct of prosecutors Cox and Goudie was both egregious and inexcusable. The prosecutors crossed the line of zealous advocacy by a wide margin and compromised the integrity of the proceeding.’ The supreme court not only referred the matter to The Florida Bar, but also reversed the conviction and required a new trial. We also should take a strong stand on prosecutorial misconduct (as well as the misconduct of defense attorneys and attorneys in general whose ethical violations may have affected the outcome of a trial) and deal with it firmly.”

In sum, D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) marks a significant development in Florida’s corpus of case law surrounding improper closing arguments in sexual battery trials. The 5th DCA (Northeast FL’s highest court) found that:

• The prosecutor’s repeated insults of the defense attorney were impermissible
• So, too, were the prosecutor’s “justice for the victim” arguments at the conclusion of his closing argument
• The trial judge’s limitation on objections during closing arguments led the defense to be unable to adequately preserve the record contemporaneously
• As this was FUNDAMENTAL ERROR, reversal and a new trial was required

Florida’s criminal defense community should take note of D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999), as it makes clear even capital sexual battery convictions may be reversed due to improper closing arguments (depending on the circumstances).

Sexual battery charges can carry lengthy prison sentences and heavy financial penalties. If someone is arrested and formally charged in Florida, it is vital to find experienced and aggressive legal representation as soon as possible. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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