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Florida Criminal Procedure: The Judge as "Second Juror" on a Motion for New Trial

Motions for new trial in Florida criminal cases typically fall under Florida Rule of Criminal Procedure 3.600(b), with defense counsel seeking to establish that the client was prejudiced by an error the trial court made on an issue of law. An often overlooked or misused tool available to Florida criminal defense attorneys is the motion for new trial based on a claim that the "verdict is contrary to the law or the weight of the evidence."

It is not that defense attorneys fail to make the motion; it is that they often fail to argue the motion correctly. And even when they do argue it correctly, trial judges sometimes fail to understand their role in ruling on such a motion.

What Does the Rule Allow?

Florida Rule of Criminal Procedure 3.600(a)(2) states that the trial court shall grant a new trial if the jury's verdict is "contrary to law or the weight of the evidence." The rule essentially permits the trial judge to act as an additional juror, independently weighing the evidence and determining the credibility of witnesses.

What is the Standard for a Motion for New Trial Under the Rule?

When a defense attorney makes a motion for new trial under Rule 3.600(a)(2), the trial judge must consider the weight of the evidence, not the sufficiency of the evidence. The sufficiency of the evidence standard is used for determining whether a judgment of acquittal is appropriate. The test in that instance is simply whether the evidence is legally adequate to permit a verdict.

By contrast, the weight of the evidence standard—the proper standard for a Rule 3.600(a)(2) motion for new trial—tests "whether a greater amount of credible evidence supports one side of an issue or another." The trial judge functions as an additional juror, so to speak, and may grant a new trial where there is technically enough evidence to support the charge, but where the weight of the evidence does not support the verdict.

In fact, there may be cases in which a motion for judgment of acquittal is denied because there is sufficient evidence to support the charge, but a motion for new trial under Rule 3.600(a)(2) may be granted because, after the trial is over and the jury returns its verdict, the trial judge reweighs the evidence and finds that it does not support the jury's verdict.

Misapplication of the Standard May be Grounds for Appeal

_ Ferebee v. State of Florida_ illustrates the confusion that may arise when this often overlooked and misunderstood motion for new trial is raised. In that case, the defense attorney made a Rule 3.600(a)(2) motion for new trial, and the trial judge denied it, stating that there were "sufficient facts" for the jury to have found the defendant guilty.

The trial court in Ferebee misunderstood the grounds for the motion and applied the wrong legal standard (i.e., the sufficiency of the evidence standard appropriate for a motion for judgment of acquittal). Because the wrong legal standard was applied, the appellate court reversed and remanded for the trial court to consider the motion under the proper standard.

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