         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


AVINDRA BUDHAN,

             Appellant,

 v.                                                   Case No. 5D15-1293

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed November 10, 2016

Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.

William R. Ponall, of Ponall Law, Maitland,
Luis F. Calderon, of the Baez Law Firm,
Orlando, and Matthew P. Ferry, of Lindsey
& Ferry, P.A., Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Appellant challenges his convictions and sentences for two counts of attempted

voluntary manslaughter, one count of aggravated battery with a firearm or causing great

bodily harm, and two counts of aggravated assault with a firearm.
      Based on the State’s proper concession of error, we reverse the convictions and

sentences for attempted voluntary manslaughter and remand for a new trial on those

counts. Although we affirm the convictions on the aggravated battery and aggravated

assault counts, based again on the State’s proper concession of error, we reverse the

sentences and remand for resentencing on those counts.

      In all other respects, we affirm.

      AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


TORPY and BERGER, JJ., concur.

COHEN, J, concurs in part and dissents in part.




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                                                        CASE NO. 5D15-1293

COHEN, J., concurring in part and dissenting in part.

       I concur in the majority’s decision to reverse Budhan’s convictions for attempted

manslaughter. The trial court’s failure to read the “introduction to attempted homicide”

instruction and its omission of the definitions of “attempted homicide” or “excusable

attempted homicide” compel reversal. I also agree that a sentencing error occurred on

both the aggravated battery and aggravated assault charges.

       However, I would reverse the aggravated battery and aggravated assault

convictions as well, based upon a series of improper comments made by the State during

its closing argument. Most egregiously, the prosecutor argued to the jury, “This is not

South America. We cannot abide people discharging guns in the street.” Budhan is from

Guyana, a South American country, and he was charged with firing a gun during a fight

with his wife’s relatives from Trinidad.1

       The State argues Budhan failed to preserve this argument with a proper objection.

While Budhan objected to the prosecutor’s argument, the legal basis for the objection was

not the same basis pursued on appeal. As a result, we can only review the State’s

comments for fundamental error. Servis v. State, 855 So. 2d 1190, 1193 (Fla. 5th DCA

2003). The issue is complicated by the fact that Budhan first interjected the tensions

between Guyanans and Trinidadians into the trial, and I can fully understand the

majority’s reluctance to reverse.




       1The victim was from Trinidad, and Budhan testified that citizens from the two
countries have a long-standing cultural distrust of one another.


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       Nonetheless, I would find that the State’s comments, in their totality, constitute

fundamental error. Cf. Crew v. State, 146 So. 3d 101, 111 (Fla. 5th DCA 2014).

Prosecutorial comments attempting to appeal to a juror’s bias or to attribute criminal

conduct to a defendant on the basis of race, ethnicity, or national origin, have no place in

our criminal justice system. See Terrazas v. State, 696 So. 2d 1309, 1310 (Fla. 2d DCA

1997). I respectfully dissent.




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