5th District Court of Appeal
Case No. 5D15-3622
February 2017

Marco Antonio Rodriguez v. State of Florida

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Case Details


In a 2-1 decision, the Court reversed a lower court's ruling and the charge was sent back to the lower courts for a new trial for lewd or lascivious molestation. The decision also ordered that the Florida Bar would be alerted to the conduct of the Prosecutor. The ruling reads:

"... there is no doubt that Appellant was denied a fair trial ... Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict."

In a trial, closing arguments go in this order: prosecution, defense,  prosecution. The prosecution goes twice so they can respond to the defense's statements. In this case, the Prosecutor's first closing argument was professional. Their second closing argument was not:

  • The Prosecutor called the Defendant "pedophile" seven times. This could lead the jury to convict based on prejudice instead of facts. Each time it was used, it increased the risk.
  • The Prosecutor mis-represented evidence to the jury. For example, the Prosecutor falsely told them the Defendant admitted to things that he had "consistently, repeatedly denied".
  • The Prosecutor urged the jury to give justice to the victim. It is well-established that this is not an appropriate tactic. It asks the jury to rely on their emotions instead of facts.
  • The ruling also references 4 more types of misconduct, without going into details. For example, mocking the Defendant.

Because the misconduct was constant and varied, it rises to the level of a new trial. The ruling states that "it made a mockery of the constitutional guarantee of a fair trial".

The Defense attorney had a duty to object, and trial judge should have intervened.

  • The Defense's objections would have protected the Defendant's rights. The right to appeal and the right to a fair trial. If the Defense objected, the impact of the misconduct would have been reduced. It is likely that the trial judge would have explained the error to the jury. Also, the Prosecutor could have been reminded to continue professionally.
  • Even if the Defense attorney didn't object, the trial judge should have stepped in.

The ruling states how difficult a new trial will be for all involved, but they felt there was no other choice.

Dissent: Judge Palmer

"I respectfully dissent because, in my view, the unobjected-to statements made by the prosecutor, although improper, do not rise to the level of fundamental error."

He felt the Prosecutor's actions were wrong, but he didn't feel it was enough to require a retrial.

Read the full ruling


In 2015, Marco Antonio Rodriguez was convicted of sexually molesting a 5-year-old girl. He was found guilty on 2 counts of lewd and lascivious molestation, and not-guilty on one of the counts.

The trial's Prosecutor does not appear to have been reprimanded by the Florida Bar.

Related Articles

Article: Appeals court chastises Orlando prosecutor, orders new trial for accused child sex offender (Orlando Sentinel, 2017)

Note: Some resources, like the Orlando Sentinel and Florida Today, have a limited number of free articles before putting up a paywall.

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