final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
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 defendant's motion for new trial,
which required that two standards be considered: (1) a
sufficiency of the evidence standard (i.e., was the
jury's 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
jury's 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.2d 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 court's 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).
Kelsey, J., dissenting with opinion.
dissent solely with respect to whether the trial court's
ruling on the motion for new trial expressly or ambiguously
referenced the incorrect standard. The motion itself, and
defense counsel's argument on the motion, invoked the
correct standard of whether the weight of the evidence
supported the jury's verdict. The applicable standard was
expressly recited and undisputed. Interpreting in context the
trial court's 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 court's word choice created an ambiguity, which is
insufficient to establish fundamental error. See Kline v.
State, 274 So.3d 525, 526 (Fla. 1st DCA 2019) (finding
as insufficient to establish fundamental error the mere
potential that trial court applied incorrect standard to
resolve claim that verdict was contrary to the weight of the
evidence). I would therefore affirm on this issue.