           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2818
                 _____________________________

LARRY JORDAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Linda McCallum, Judge.

                         April 20, 2018


WOLF, J.

     Appellant challenges his judgment and sentence for one
count of possession of a firearm by a convicted felon, raising two
issues on appeal. We find merit as to appellant’s claim that the
trial court erred in applying a sufficiency of the evidence
standard to his motion for a new trial. We find no merit as to the
second issue raised by appellant.

    Appellant was tried for possessing a firearm while being a
convicted felon. After the presentation of evidence and closing
arguments, the jury found appellant guilty. Appellant then filed a
motion for a new trial, arguing in part that the verdict was
against the manifest weight of the evidence. At the sentencing
hearing, defense counsel specifically argued that the verdict was
contrary to the weight of the evidence because the witnesses
presented by the State were biased and could not provide a clear
description of the firearm. The trial court then ruled, “All right. I
will deny the motion for new trial. The jury did not agree with
that position and they found him guilty beyond a reasonable
doubt, so I will deny the motion.” (emphasis added).

     While we generally review a trial court’s denial of a motion
for a new trial under the abuse of discretion standard, we review
whether the trial court employed the proper standard de novo.
Velloso v. State, 117 So. 3d 903, 905 (Fla. 4th DCA 2013); Geibel
v. State, 817 So. 2d 1042, 1044-45 (Fla. 2d DCA 2002).

     A motion for new trial requires a trial court to evaluate
whether a jury’s verdict is contrary to the weight of the evidence
and to act, in effect, as an additional juror. Fla. R. Crim. P.
3.600(a)(2); Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla. 1981).
This standard is different than the one used by a court in ruling
on a motion for a judgment of acquittal, which utilizes a
sufficiency of the evidence standard. Velloso, 117 So. 3d at 905.
Although a trial court is not required to use “magic words” when
ruling on a motion for a new trial, it is reversible error for the
trial court to utilize the wrong standard. Palmer v. State, 196 So.
3d 1289 (Fla. 1st DCA 2016); Velloso, 117 So. 3d at 905; Ferebee v.
State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007).

    In the instant case, when the trial court said the jury did not
agree with appellant’s argument so the court would not either,
the trial court implied that it denied appellant’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. Palmer, 196 So. 3d
at 1289-90; Fulword v. State, 29 So. 3d 425, 426 (Fla. 5th DCA
2010); Geibel, 817 So. 2d at 1045. 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.

    As we have previously held, “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

                                 2
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.” Palmer, 196 So. 3d at 1290
(quoting Spear v. State, 860 So. 2d 1080 (Fla. 1st DCA 2003)).

    REVERSED and REMANDED.

ROBERTS and WETHERELL, JJ., concur.


                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Kevin Steiger, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




                              3
