appeal from the Circuit Court for Duval County. Steven B.
Thomas, Public Defender, and Kevin P. Steiger, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
issue in this case is whether the trial court erred by
failing to state that he applied the correct standards of
review in denying the defendants motion for new trial, which
required that two standards be considered: (1) a sufficiency
of the evidence standard (i.e., was the jurys verdict
supported by sufficient evidence) and (2) a weight of the
evidence standard by which the trial judge acts as a seventh
juror to independently assess whether the jury verdict was
contrary to the weight of the evidence. McCloud v.
State, 150 So.3d 822, 823 (Fla. 1st DCA 2014)
("Defendants have the right to have the trial judge
evaluate and weigh the evidence independently of the jurys
findings to determine whether the jury verdict was contrary
to the weight of the evidence." (quoting Kelley v.
State, 16 So.3d 196, 197 (Fla. 1st DCA 2009)) (internal
quotation marks and citation omitted)). Here, the trial judge
applied the former standard, stating only that the evidence
was "sufficient." Because the latter standard was
not applied, we reverse and remand. "Upon remand, if the
trial court concludes that the verdict is against the weight
of the evidence, it should grant the motion for new trial. In
the event the trial
court concludes that the verdict is not against the weight of
the evidence, it may again deny the motion and enter a new
judgment and sentence accordingly." Jordan v.
State, 244 So.3d 1178, 1179 (Fla. 1st DCA 2018)
(citation omitted). As to all other claims, we affirm without
J., concurring with opinion.
reluctantly concur. While I believe the reasoning of
Kline v. State, 274 So.3d 525 (Fla. 1st DCA 2019),
should apply and allow us to affirm the denial of the motion
for new trial, I believe binding precedent requires us to
remand to assure the trial court did not apply the wrong
standard in ruling on the motion.[*]
Kline opinion explained that although this court has
reversed a trial courts findings that "indicate that
the court may have applied the sufficiency of the
evidence standard instead of the weight of the evidence
standard, ... where it is unclear whether the trial court
used the wrong standard, we find the potential that
the trial court erred does not reach the level of fundamental
error." Kline, 274 So.3d at 526 (emphasis in
original) (suggesting that such an error may be fundamental
if the trial court expressly refuses to properly weigh the
evidence, citing Velloso v. State, 117 So.3d 903,
905-06 (Fla. 4th DCA 2013)).
fact that the trial court specifically found that the
evidence was "sufficient to support the verdict
that was rendered by the jury" raises a strong
possibility rather than just the potential that the wrong
standard was used (emphasis added). Where such a strong
possibility exists, precedent requires us to remand to the
trial court for clarification. Jordan v. State, 244
So.3d 1178 (Fla 1st DCA 2018).
J., dissenting with opinion.
dissent solely with respect to whether the trial courts
ruling on the motion for new trial expressly or ambiguously
referenced the incorrect standard. The motion itself, and
defense counsels argument on the motion, invoked the correct
standard of whether the weight of the evidence supported the
jurys verdict. The applicable standard was expressly recited
and undisputed. Interpreting in context the trial courts
statement that the evidence was "sufficient," it
appears that the court ruled that the evidence satisfied the
applicable standard. Defense counsel did not object or
request clarification. At worst, the courts word choice
created an ambiguity, which is insufficient to establish
fundamental error. SeeKline v. State, 274
So.3d 525, 526 (Fla. 1st DCA 2019) (finding as insufficient