Joe Lee v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM 2013
JOE LEE,
Appellant,
v.
Case No. 5D11-2319
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed July 9, 2013
Appeal from the Circuit Court
for St. Johns County,
Wendy Berger, Judge.
Ryan Thomas Truskoski, and Jeffrey
Deen, of Office of the Criminal and Civil
Regional Counsel, Casselberry, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM
CLARIFIED OPINION
The court, sua sponte, withdraws the opinion previously entered in this matter
and substitutes this opinion.
The appellant, Joe Lee, was convicted of robbery with a firearm and aggravated
battery with a firearm, and sentenced on each count in accordance with the 10-20-Life
statute. He argues that the trial court used an incorrect standard in ruling on his motion
for a new trial founded on his claim that the principal testimony against him at trial was
fatally inconsistent. Because there is merit to Mr. Lee's argument, we reverse and
remand for a new hearing on his motion for new trial.
Rule 3.600(a)(2), Florida Rules of Criminal Procedure, provides that the court
shall grant a new trial if, among other reasons, "[t]he verdict is contrary to law or the
weight of the evidence." When ruling on a motion for new trial based on a claim that the
verdict is against the weight of the evidence, the trial court is compelled to exercise its
discretion to determine "whether a greater amount of credible evidence supports one
side of an issue or the other." Fulword v. State, 29 So. 3d 425 (Fla. 5th DCA 2010)
(citing Geibel v. State, 817 So. 2d 1042, 1044 (Fla. 2d DCA 2002)). The trial court
under these circumstances acts as a "safety valve" by considering whether to grant a
new trial where "the evidence is technically sufficient to prove the criminal charge but
the weight of the evidence does not appear to support the jury verdict." Moore v. State,
800 So. 2d 747, 749 (Fla. 5th DCA 2001).
In the present case it is unclear whether or not the trial judge applied the correct
standard in denying the motion for new trial. Indeed, the State agrees that because the
record on the issue is ambiguous, a new hearing on Mr. Lee's motion is appropriate.
We agree and commend the State for its candor.
Accordingly, we reverse the order denying the motion for new trial and remand to
the trial court for a new hearing on the motion for new trial.
2
REVERSED and REMANDED with instructions.
SAWAYA, PALMER and LAWSON, JJ., concur.
3
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