DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT KEVIN FRANKLIN HUGHES, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D2022-3283 [November 22, 2023] Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Michael J. McNicholas, Judge; L.T. Case No. 2019- CF-000246.

Carey Haughwout, Public Defender, and Robert Porter, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

GROSS and DAMOORGIAN, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J., dissenting.

In this appeal of appellant’s first-degree murder conviction for killing his wife, I would reverse for a new trial because of improper closing argument by the prosecutor in arguing facts not in evidence, which I do not deem as harmless beyond a reasonable doubt. See, e.g., Evans v. State, 177 So. 3d 1219 (Fla. 2015), receded from on other grounds by Johnson v. State, 252 So. 3d 1114, 1117–18 (Fla. 2018).

* * * Not final until disposition of timely filed motion for rehearing.