Kelly E. Loudermilk v. State

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED KELLY ELIZABETH LOUDERMILK, Appellant, v. Case No. 5D16-728 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 24, 2017 Appeal from the Circuit Court for Osceola County, A. James Craner, Judge. James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Kelly Elizabeth Loudermilk appeals her judgment and sentence for trafficking in oxycodone and conspiracy to traffic in oxycodone. Loudermilk contends that the trial court erred in: 1) denying her motion for continuance to secure the testimony of two codefendants that she alleged would support an entrapment defense; and 2) applying the incorrect legal standard to her motion for new trial. We affirm as to the first issue without further discussion but reverse and remand as to the second. The proper standard to address a defendant’s motion for new trial is the weight of the evidence. See Lee v. State, 117 So. 3d 848, 849 (Fla. 5th DCA 2013); Santiago v. State, 874 So. 2d 617, 625 (Fla. 5th DCA 2004). In this case, the trial court incorporated its order denying Loudermilk’s motion for judgment of acquittal, in which it applied a sufficiency of the evidence standard, into its order denying her motion for new trial. Accordingly, these orders suggest that the trial court also utilized a sufficiency of the evidence standard when considering Loudermilk’s motion for new trial. We therefore reverse and remand on this issue for the trial court to consider Loudermilk’s motion for new trial pursuant to the weight of the evidence standard. See King v. State, 183 So. 3d 1071, 1072 (Fla. 5th DCA 2015). AFFIRMED in part; REVERSED in part; REMANDED. SAWAYA, TORPY and BERGER, JJ., concur. 2

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