final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Laura Sellers Johnson, Judge; L.T. Case
Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
Moses Mitchell was convicted of burglary with assault or
battery while in possession of a firearm and two counts of
robbery with a firearm. We affirm on all issues raised on
appeal. We write only to address Appellant's argument
that the trial court's failure to explicitly articulate
what standard it applied when reviewing the evidence with
respect to his motion for a new trial was reversible error.
guilty verdict, Appellant filed a timely motion for new
trial. He asserted that the verdicts were contrary to the
weight of the evidence and specifically requested the trial
court to "assess the verdict in light of the weight and
credibility of the evidence." The trial court denied the
motion, verbally stating, "[a]ll right, I'll note
your motion and objections and at this time I'll deny
your motion for a new trial or your motion to dismiss."
The judge then entered a written order, merely stating,
"[t]he motion is denied." Appellant made no
objection that the trial court had not articulated the legal
standard it applied in reviewing the evidence.
a trial court's ruling on a [Florida Rule of Criminal
Procedure] 3.600(a)(2) motion for new trial is subject to
review under an abuse of discretion standard. But where a
trial court's ruling is based on the application of an
incorrect legal standard, the ruling is subject to de novo
review." Velloso v. State, 117 So.3d 903, 905
(Fla. 4th DCA 2013) (quoting Ferebee v. State, 967
So.2d 1071, 1073 (Fla. 2d DCA 2007)).
courts will be reversed on appeal for incorrectly applying
the standard for motions for judgment of acquittal when
deciding motions for a new trial. See, e.g.,
Palmer v. State, 196 So.3d 1289, 1289 (Fla. 1st DCA
2016); Ferebee, 967 So.2d at 1073; Spear v.
State, 860 So.2d 1080, 1080 (Fla. 1st DCA 2003);
Moore v. State, 800 So.2d 747, 749-50 (Fla. 5th DCA
2001). Motions for judgment of acquittal are decided under
the sufficiency of the evidence standard, which
"examines whether the evidence presented is legally
adequate to permit a conviction." Velloso, 117
So.3d at 905; see also Fla. R. Crim. P. 3.380(a).
Motions for a new trial are assessed under the weight of the
evidence standard, which "evaluates whether a greater
amount of credible evidence supports an acquittal."
Velloso, 117 So.3d at 905; see also Fla. R.
Crim. P. 3.600(a)(2). We reversed the trial court in
Velloso because it applied the sufficiency of the
evidence standard when deciding a motion for new trial.
Velloso, 117 So.3d at 905-06.
in his motion for new trial, Appellant argued that the
verdict was contrary to the law and the weight of the
evidence. The trial court asked defense counsel if he wanted
to add anything to the motion. Counsel stated that he was
specific in this argument in the motion and would rely on the
written motion. The trial court noted the motion and
summarily denied it, without specifying the standard it was
applying. Appellant lodged no objection nor request for
clarification. Thus, to the extent there is an issue for
review, it was not preserved. "The requirement of a
contemporaneous objection is based on practical necessity and
basic fairness in the operation of a judicial system. It
places the trial judge on notice that error may have been
committed, and provides [the judge] an opportunity to correct
it at an early stage of the proceedings." Castor v.
State, 365 So.2d 701, 703 (Fla. 1978).
light of Appellant's failure to preserve this issue, our
review is limited to determining whether the trial
court's failure to explicitly recite the standard of
review constitutes fundamental error. In addition to
Velloso (where the trial court articulated the wrong
standard), Appellant relies upon two cases cited in
Velloso for his argument that remand is required for
the trial court to reconsider the motion for new trial. In
Geibel, the court remanded because it was
"unable to establish whether [the trial court] applied
the correct standard from [the trial court's] oral
pronouncement, particularly in light of [the trial
court's] comment that [it] found no 'legal basis'
to support the motion." 817 So.2d at 1045. In Lee v.
State, 117 So.3d 848 (Fla. 5th DCA 2013), the court
remanded because "it is unclear whether or not the trial
judge applied the correct standard in denying the motion for
new trial [and] the State agrees that because the record on
the issue is ambiguous, a new hearing on [the] motion is
appropriate." Id. at 850.
the trial court did not make any eyebrow-raising comment as
in Velloso or Geibel, nor does the State
agree with Appellant that there is an "ambiguous"
record on this issue. Appellant provided the trial court with
the correct standard of review in his motion, and neither the
State nor the trial court took exception to that standard.
The trial court then noted ...