
    Ney v. McCAIN, Appellant, v. STATE of Florida, Appellee.
    No. 85-68.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1985.
    James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.
   HALL, Judge.

This case involves prosecutorial comment upon appellant’s failure to testify. Twice in his closing argument the prosecutor directed the jury’s attention to such fact. Upon objection by appellant, the trial court warned that the comments came “close” to being impermissible.

In that the state has met its burden of showing the comments to be harmless beyond reasonable doubt, we are bound by United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); State v. Marshall, 476 So.2d 150 (Fla.1985); and State v. Murray, 443 So.2d 955 (Fla.1984), to apply the harmless error doctrine.

Although we affirm the conviction, we note that in State v. Murray, the Florida Supreme Court suggested disciplinary investigation of such overzealous and errant prosecutors. Prosecutorial misconduct such as in the instant case would otherwise go uncurbed. Prosecutors should not be permitted to violate defendant’s constitutional rights with impunity.

DANAHY, A.C.J., and FRANK, J., concur.  