       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          MICHAEL ROBBINS,
                              Petitioner,

                                    v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D18-929

                             [July 11, 2018]

   Petition alleging ineffective assistance of appellate counsel to the
Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan,
Judge; L.T. Case No. 12016631CF10A.

   Robert Malove, Fort Lauderdale, for petitioner.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for respondent.

GERBER, C.J.

    The defendant, pursuant to Florida Rule of Appellate Procedure
9.141(d), petitions that he received ineffective assistance of appellate
counsel on his direct appeal, primarily because the direct appeal did not
argue that the trial court applied the incorrect legal standard in denying
the defendant’s motion for new trial. We grant the petition on this ground
only. We remand for the trial court to reconsider the defendant’s motion
for new trial under the correct legal standard.

   We present this opinion in the following five sections:
   1. The procedural history;
   2. The standard of review for a petition alleging ineffective assistance
      of appellate counsel;
   3. Review of the incorrect legal standard argument;
   4. Review of the instant case and similar precedent; and
   5. Distinguishing the instant case from recent precedent.
                         1. Procedural History

   The state charged the defendant with aggravated battery with a firearm.
The evidence showed that the defendant was involved in an argument with
a man who was hanging out with a small group of people outside of a
business. The defendant eventually got a gun from his nearby truck, fired
two shots towards the group, and drove off. One of the shots struck a
woman in the group.

   Defendant claimed that he fired warning shots in self-defense and did
not intend to hit anyone. At trial, defense counsel cross-examined the
woman about her inconsistent statements regarding whether it appeared
to her that the defendant was trying to shoot towards the group or was
just trying to scare someone off.

   After the jury convicted the defendant as charged, defense counsel
moved for a new trial, arguing in part that, pursuant to Florida Rule of
Criminal Procedure 3.600(a)(2), the verdict was contrary to the weight of
the evidence. Defense counsel reminded the court about the woman’s
inconsistent statements regarding whether it appeared to her that the
defendant was just trying to scare someone off.

   In response to the defendant’s motion for new trial, the prosecutor
argued, in pertinent part, that as far as “talking about the victim and
perhaps her inconsistent statement to the police . . . this is not the time
for [the Court] to sit in the chairs of the jury. . . . I am asking the Court
that it is a question of fact that the jury already considered in their
deliberations and at this time should not be granted – a Motion for New
Trial should not be granted on that fact.”

   The trial court denied the defendant’s motion for new trial. The trial
court reasoned, “I agree with the State that it was a question of fact and
the jurors got to see [defense counsel] challenge [the victim] with the prior
inconsistent statements and it didn’t make an impact on them.”

   The direct appeal raised a separate evidentiary issue. We affirmed on
that separate evidentiary issue. Robbins v. State, 229 So. 3d 1244 (Fla.
4th DCA 2017) (table).

   The direct appeal did not argue that the trial court applied the incorrect
legal standard in denying the defendant’s motion for new trial.




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                  2. The Standard of Review for a
    Petition Alleging Ineffective Assistance of Appellate Counsel

   The defendant now petitions that he received ineffective assistance from
his appellate counsel on the direct appeal, because the direct appeal did
not argue that the trial court applied the incorrect standard in denying the
defendant’s motion for new trial.

  Our standard of review on a petition alleging ineffective assistance of
appellate counsel was set forth by our supreme court in Rutherford v.
Moore, 774 So. 2d 637 (Fla. 2000):

         When analyzing the merits of the claim, the criteria for
      proving ineffective assistance of appellate counsel parallel the
      Strickland [v. Washington, 466 U.S. 668 (1984)] standard for
      ineffective trial counsel. Thus, this Court’s ability to grant
      habeas relief on the basis of appellate counsel’s
      ineffectiveness is limited to those situations where the
      petitioner establishes first, that appellate counsel’s
      performance was deficient because the alleged omissions are
      of such magnitude as to constitute a serious error or
      substantial deficiency falling measurably outside the range of
      professionally acceptable performance[,] and second, that the
      petitioner was prejudiced because appellate counsel’s
      deficiency compromised the appellate process to such a
      degree as to undermine confidence in the correctness of the
      result. If a legal issue would in all probability have been found
      to be without merit had counsel raised the issue on direct
      appeal, the failure of appellate counsel to raise the meritless
      issue will not render appellate counsel’s performance
      ineffective.

Rutherford, 774 So. 2d at 643 (internal footnote, citations, and quotation
marks omitted).

    Here, we conclude that the criteria for proving ineffective assistance of
appellate counsel has been met. If the direct appeal had argued that the
trial court applied the incorrect legal standard in denying the defendant’s
motion for new trial, then we would have found that the argument had
merit, and reversed for reconsideration of the motion under the correct
legal standard.

   To explain our conclusion, we examine how we would have analyzed
the incorrect legal standard argument on direct appeal.

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        3. Review of the Incorrect Legal Standard Argument

    On direct appeal, our standard of review for determining whether the
trial court applied an incorrect legal standard to the motion for new trial
would have been de novo. See Velloso v. State, 117 So. 3d 903, 905 (Fla.
4th DCA 2013) (“Ordinarily, a trial court’s ruling on a rule 3.600(a)(2)
motion for new trial is subject to review under an abuse of discretion
standard. But where a trial court’s ruling is based on the application of
an incorrect legal standard, the ruling is subject to de novo review.”)
(citation omitted).

   Velloso discussed the difference between the “sufficiency of the
evidence” standard on a motion for judgment of acquittal versus the
“weight of the evidence” standard on a motion for a new trial:

         Rule 3.600(a)(2) provides that a trial court shall grant a
      new trial if the verdict is “contrary to . . . the weight of the
      evidence.” There is a distinction between the “sufficiency of
      the evidence” standard, which is used in determining whether
      to grant a judgment of acquittal, and the “weight of the
      evidence” standard, which is used in evaluating a motion for
      new trial. The “sufficiency of the evidence” standard examines
      whether the evidence presented is legally adequate to permit
      a conviction, while the “weight of the evidence” standard
      evaluates whether a greater amount of credible evidence
      supports an acquittal.

          In deciding a motion for new trial . . . , the trial court acts
      as a “safety valve” by granting 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. Rule 3.600(a)(2) thus enables the trial judge to weigh
      the evidence and determine the credibility of witnesses so as
      to act, in effect, as an additional juror.

         A trial court is not compelled to use “magic words” when
      ruling on a motion for new trial, but the ruling should
      demonstrate that the court applied the proper standard to the
      motion. Reversible error occurs when a trial court applies a
      sufficiency of the evidence standard to a motion for new trial
      under rule 3.600(a)(2).

Id. (internal citations and other quotation marks omitted).

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        4. Review of the Instant Case and Similar Precedent

    In the instant case, the combination of the prosecutor’s statement (“this
is not the time for [the Court] to sit in the chairs of the jury”) and the trial
court’s reasoning (“I agree with the State that it was a question of fact”)
appears to demonstrate that the trial court applied a “sufficiency of the
evidence” standard and not rule 3.600(a)(2)’s “contrary to . . . the weight
of the evidence” standard.

    This incorrect application of law, if raised on direct appeal, would have
resulted in a reversal for reconsideration of the defendant’s motion for new
trial under the correct legal standard, based on our precedent in Velloso.

   In Velloso, the trial court denied the defendant’s motion for new trial,
reasoning that it was “the jury’s role to weigh the credibility of witnesses.
I make the determination whether the State has met the minimum
threshold for it to go to the jury. And that’s a minimum threshold. That’s
what the standard is, whether reasonable jurors could differ.” Id. at 905-
06. We reversed and remanded for the trial court to reconsider the
defendant’s motion for new trial, concluding that the trial court’s
statements indicated it had “applied the sufficiency of the evidence
standard, when it should have determined whether the verdict was
contrary to the weight of the evidence.” Id. at 906.

   Our holding in Velloso recently was followed by one of our sister courts
in Jordan v. State, 43 Fla. L. Weekly D877 (Fla. 1st DCA Apr. 20, 2018).
In Jordan, the trial court denied the defendant’s motion for new trial,
reasoning, “The jury did not agree with that position and they found him
guilty beyond a reasonable doubt, so I will deny the motion.” Id. at D877.
The First District reversed and remanded for the trial court to reconsider
the defendant’s motion for new trial, concluding the trial court’s
statements

      implied that it denied [the defendant’s] motion because there
      was sufficient evidence to allow the jury to reach a decision.
      Thus, the trial court impermissibly used a sufficiency of the
      evidence standard in evaluating the motion. The trial court
      also impermissibly abrogated its responsibility to determine
      whether a verdict is against the manifest weight of the
      evidence independently of the jury.

Id. at D878 (internal citations omitted).


                                       5
   Similar to Velloso and Jordan, the trial court in the instant case
impermissibly used a “sufficiency of the evidence” standard in evaluating
the motion, rather than applying rule 3.600(a)(2)’s “contrary to . . . the
weight of the evidence” standard. Thus, if the direct appeal had argued
that the trial court applied the incorrect legal standard, then reversal for
reconsideration of the motion for new trial would have been required,
pursuant to Velloso.

  5. Distinguishing the Instant Case from More Recent Precedent

    We distinguish the instant case from our more recent precedent in
Mitchell v. State, 43 Fla. L. Weekly D914 (Fla. 4th DCA Apr. 25, 2018). In
Mitchell, the defendant’s motion for new trial asserted that the verdicts
were contrary to the weight of the evidence, and specifically requested the
trial court to “assess the verdict in light of the weight and credibility of the
evidence.” Id. at D914. The trial court denied the motion, verbally stating,
“All right, I’ll note your motion and objections and at this time I’ll deny
your motion for a new trial or your motion to dismiss.” Id. The trial court
then entered a written order, merely stating, “The motion is denied.” The
defendant did not object that the trial court had not articulated the legal
standard it applied in reviewing the evidence.

    On direct appeal, the defendant argued that “the trial court’s failure to
explicitly articulate what standard it applied when reviewing the evidence
with respect to his motion for a new trial was reversible error.” Id. We
affirmed, concluding that because the trial court’s ruling “already
implicitly applied the correct standard of review,” and the defendant
“lodged no objection nor request for clarification,” the defendant had not
preserved his incorrect legal standard argument for review. Id. We
reasoned that Velloso was distinguishable:

         Here [in Mitchell], the trial court did not make any eyebrow-
      raising comment as in Velloso . . . nor does the State agree
      with [the defendant] that there is an “ambiguous” record on
      this issue. [The defendant] provided the trial court with the
      correct standard of review in his motion, and neither the State
      nor the trial court took exception to that standard. The trial
      court then noted [the defendant’s] motion and ruled, orally
      and in a written order, that it was denying the motion.

         There exists in law as in equity a presumption of the
      correctness of the rulings of the trial court and a person
      resorting to an appellate court is charged with the


                                       6
      responsibility of making error clearly to appear.         [The
      defendant] has failed to meet this burden in the instant case.

43 Fla. L. Weekly at D914 (citations and quotation marks omitted).

   The instant case more closely resembles Velloso than Mitchell, because
here, both the prosecutor and the court articulated the incorrect legal
standard for reviewing a rule 3.600(a)(2) motion for new trial. And, in any
event, at the time the direct appeal was filed, Velloso was the law in this
court, and Mitchell had not yet issued.

                                Conclusion

    Because appellate counsel did not raise the incorrect legal standard
argument, which under Velloso would have resulted in a reversal for
reconsideration on the defendant’s motion for new trial, we are compelled
to grant the defendant’s petition on this argument. We reverse the trial
court’s denial of the defendant’s motion for new trial, and remand for the
trial court to consider the motion under rule 3.600(a)(2)’s “contrary to . . .
the weight of the evidence” standard. We make no comment on whether
the defendant’s motion for new trial should be granted or denied.

   The defendant’s remaining argument in his petition alleging ineffective
assistance of appellate counsel is denied without further discussion.

   Granted in part, denied in part, and remanded for further proceedings
consistent with this opinion.

CONNER and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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