ROSIER v. STATE (2003)

The sole issue raised on this appeal from a felony battery conviction is whether the prosecutor made improper comments which were not objected to, but which constitute fundamental error.   We affirm the conviction, concluding that the comments were not improper, let alone fundamental error.

We often affirm cases involving this type of issue without opinion, because we conclude that an opinion would not be of any significant assistance to the bench or bar.  Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983).   Where the defendant raises an issue which was not preserved, however, and we decide there was no error, a useful purpose can be served by issuing an opinion explaining that no error was demonstrated.

When defense counsel raises an error on direct appeal which has not been preserved, as in this case, and the case is affirmed without opinion, the defendant may assert in a rule 3.850 motion that his trial counsel was ineffective for failing to preserve the error.   When we explain on the direct appeal that there was no error, it could relieve the trial court from having to conduct an evidentiary hearing on a rule 3.850 motion alleging counsel was ineffective for failing to preserve the error.   See Chandler v. State, 848 So.2d 1031 (Fla.2003).

Although we affirm the conviction we remand for the trial court to enter a written order of probation in conformance with the court's oral pronouncement.

KLEIN, J.

GUNTHER and GROSS, JJ., concur.