        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                            MOSES MITCHELL,
                               Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-1225

                               [April 25, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura Sellers Johnson, Judge; L.T. Case No.
502015CF000469AXXXMB.

   Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Moses Mitchell was convicted of burglary with assault or
battery while in possession of a firearm and two counts of robbery with a
firearm. We affirm on all issues raised on appeal. We write only to address
Appellant’s argument 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.

                                 Background

   After a guilty verdict, Appellant filed a timely motion for new trial. He
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.” The trial court denied the motion,
verbally stating, “[a]ll 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.” The
judge then entered a written order, merely stating, “[t]he motion is denied.”
Appellant made no objection that the trial court had not articulated the
legal standard it applied in reviewing the evidence.

                                     Analysis

   “Ordinarily, a trial court’s ruling on a [Florida Rule of Criminal
Procedure] 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.” Velloso v. State, 117 So. 3d 903, 905 (Fla. 4th DCA 2013)
(quoting Ferebee v. State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007)).

    Trial courts will be reversed on appeal for incorrectly applying the
standard for motions for judgment of acquittal when deciding motions for
a new trial. See, e.g., Palmer v. State, 196 So. 3d 1289, 1289 (Fla. 1st DCA
2016); Ferebee, 967 So. 2d at 1073; Spear v. State, 860 So. 2d 1080, 1080
(Fla. 1st DCA 2003); Moore v. State, 800 So. 2d 747, 749-50 (Fla. 5th DCA
2001). Motions for judgment of acquittal are decided under the sufficiency
of the evidence standard, which “examines whether the evidence presented
is legally adequate to permit a conviction.” Velloso, 117 So. 3d at 905; see
also Fla. R. Crim. P. 3.380(a). Motions for a new trial are assessed under
the weight of the evidence standard, which “evaluates whether a greater
amount of credible evidence supports an acquittal.” Velloso, 117 So. 3d at
905; see also Fla. R. Crim. P. 3.600(a)(2). 1 We reversed the trial court in
Velloso because it applied the sufficiency of the evidence standard when
deciding a motion for new trial. Velloso, 117 So. 3d at 905-06.

    Here, in his motion for new trial, Appellant argued that the verdict was
contrary to the law and the weight of the evidence. The trial court asked
defense counsel if he wanted to add anything to the motion. Counsel
stated that he was specific in this argument in the motion and would rely
on the written motion. The trial court noted the motion and summarily
denied it, without specifying the standard it was applying. Appellant
lodged no objection nor request for clarification. Thus, to the extent there
is an issue for review, it was not preserved. “The requirement of a
contemporaneous objection is based on practical necessity and basic
fairness in the operation of a judicial system. It places the trial judge on

1 “In deciding a motion for new trial which asserts that the verdict is contrary to
the weight of the evidence, ‘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.”’” Moore,
800 So. 2d at 749 (quoting State v. Hart, 632 So. 2d 134, 135 (Fla. 4th DCA
1994)); see also Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla. 1981) (“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.”).

                                         2
notice that error may have been committed, and provides [the judge] an
opportunity to correct it at an early stage of the proceedings.” Castor v.
State, 365 So. 2d 701, 703 (Fla. 1978).

    In light of Appellant’s failure to preserve this issue, our review is limited
to determining whether the trial court’s failure to explicitly recite the
standard of review constitutes fundamental error. In addition to Velloso
(where the trial court articulated the wrong standard), Appellant relies
upon two cases cited in Velloso for his argument that remand is required
for the trial court to reconsider the motion for new trial. In Geibel, the
court remanded because it was “unable to establish whether [the trial
court] applied the correct standard from [the trial court’s] oral
pronouncement, particularly in light of [the trial court’s] comment that [it]
found no ‘legal basis’ to support the motion.” 817 So. 2d at 1045. In Lee
v. State, 117 So. 3d 848 (Fla. 5th DCA 2013), the court remanded because
“it is unclear whether or not the trial judge applied the correct standard in
denying the motion for new trial [and] the State agrees that because the
record on the issue is ambiguous, a new hearing on [the] motion is
appropriate.” Id. at 850.

    Here, the trial court did not make any eyebrow-raising comment as in
Velloso or Geibel, nor does the State agree with Appellant that there is an
“ambiguous” record on this issue. Appellant 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
Appellant’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 responsibility of making error clearly to appear.” Watson
v. State, 194 So. 640, 642 (Fla. 1940); see also E & I, Inc. v. Excavators,
Inc., 697 So. 2d 545, 547 (Fla. 4th DCA 1997) (“The appellant has the
burden of making ‘any reversible error clearly, definitely, and fully
appear.’” (quoting Strate v. Strate, 328 So. 2d 29, 30 (Fla. 3d DCA 1976))).
Appellant has failed to meet this burden in the instant case.

                                 Conclusion

   We discern no fundamental error nor need to remand this matter to
make explicit a ruling that has already implicitly applied the correct
standard of review. On the merits of the denial of a new trial, we find no
abuse of discretion. Moreover, as stated above, we also affirm the trial
court on all other issues raised in the appeal.

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   Affirmed.

CIKLIN and CONNER, JJ., concur.

                          *       *        *

   Not final until disposition of timely filed motion for rehearing.




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