          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                        Nos. 1D17-1319
                             1D17-1539
                             1D17-1540
                  (Consolidated for disposition)
                 _____________________________

CHRISTOPHER MAURICE BELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Duval County.
James Daniel and Jack Schemer, Judges.

                           May 10, 2018

PER CURIAM.

    Christopher Bell was charged in three separate cases with
three separate burglaries. He had three separate trials and got
three separate guilty verdicts. He then filed three separate
motions for new trial, each raising the same two arguments: (1)
that the trial court erred in denying motions for judgment of
acquittal and (2) that the verdict was contrary to the weight of the
evidence. The presiding judges denied the motions, discussing only
the sufficiency-of-the-evidence arguments. In his three appeals,
which we consolidate for disposition, Bell argues that the judges
erred by applying the wrong legal standard. We review this issue
de novo. See Fergien v. State, 79 So. 3d 907, 908 (Fla. 2d DCA
2012). *

     Motions for judgment of acquittal and motions for new trial
are decided under different standards. Compare Fla. R. Crim. P.
3.380(a) (directing a court to enter a judgment of acquittal in
response to a defense motion when “the court is of the opinion that
the evidence is insufficient to warrant a conviction”) with Fla. R.
Crim. P. 3.600(a)(2) (directing a court to grant a new trial if “[t]he
verdict is contrary to law or the weight of the evidence”). While the
former tests the sufficiency of the evidence, the latter requires the
trial court to weigh the evidence and determine credibility just as
a juror would. See Fergien, 79 So. 3d at 908. This Court has
previously reversed the denial of a new-trial motion when the trial
court applied, or appeared to apply, the wrong legal standard. See
Palmer v. State, 196 So. 3d 1289 (Fla. 1st DCA 2016) (reversing
after trial court applied a sufficiency-of-the-evidence standard
instead of weight-of-the-evidence standard); Spear v. State, 860 So.
2d 1080 (Fla. 1st DCA 2003) (reversing because “the trial court’s
findings indicate that the court may have applied” the incorrect
standard).

     Here there is nothing to indicate the trial judges applied the
wrong standard. Bell raised both sufficiency-of-the-evidence and
weight-of-the-evidence arguments in his new-trial motions. While
the judges’ oral rulings only addressed the standard for the
sufficiency arguments, it does not follow that the judges applied
the sufficiency standard to the weight-of-the-evidence arguments.
Cf. Adams v. State, 417 So. 2d 826, 828 (Fla. 1st DCA 1982)
(“Although the motion for new trial raised the weight of the
evidence issue, the order denying the motion is worded in such a
way as to indicate the trial court may have limited itself to the
sufficiency of evidence standard.”). The judges had separate legal
issues before them, and the record does not suggest that they


    *  In cases 17-1319 and 17-1539, counsel argued this issue as
the sole basis for reversal. In case 17-540, counsel filed an Anders
brief, asserting there was no colorable basis for reversal. In that
case, we directed counsel to file a supplemental brief raising this
issue, and counsel ably did so.

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applied the same standard to both. In other words, Bell has not
met his burden to demonstrate error on appeal.

    AFFIRMED.

OSTERHAUS and WINSOR, JJ., concur; WOLF, J., dissents with
written opinion.
                 _____________________________

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

WOLF, J., dissenting.

     While I agree that reversal is not required if a trial judge rules
on a motion for new trial and “there is nothing [in the record] to
indicate the trial judge applied the wrong standard,” here it is at
the very least unclear what standard the trial court used. In such
cases reversal and remand for clarification are required by
precedent. See, e.g., Adams v. State, 417 So. 2d 826, 828 (Fla. 1st
DCA 1982) (reversing where the order denying the motion for new
trial was “worded in such a way as to indicate the trial court may
have limited itself to the sufficiency of evidence standard”)
(emphasis added).

     In this case, appellant made a motion for a new trial, arguing:
(1) the verdict was contrary to the weight of the evidence; and (2)
the court erred in denying appellant’s motion for judgment of
acquittal.

    In denying the motion, the court made the following ruling:

    All right. The motion is denied. We dealt with this at the
    trial. I don’t know that there’s – I can add much more to
    it. It is a circumstantial evidence case from the
    standpoint of intent. Most cases of burglary usually are
    circumstantial in nature as far as proof of the defendant’s
    intent. I think there’s evidence here that would rebut, if
    believed by the jury, which it was apparently, that would

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    rebut the reasonable hypothesis of innocence that hereby
    the defense was essentially I just went to trespass, is
    essentially what the defense is arguing, and you’ve got –
    you’ve got forced entry and some of the other pieces of
    evidence that would support that it was done with an
    intent to go in and commit the act of theft. So I’m – I’m
    denying it.

(Emphasis added). The trial court made no mention in its ruling of
the manifest weight of the evidence test that it was supposed to
apply in ruling on a motion for new trial.

      In a criminal case, motions for judgment of acquittal and for
new trial are decided under different tests. Compare Fla. R. Crim.
P. 3.380(a) (directing judgment of acquittal when the trial court “is
of the opinion that the evidence is insufficient to warrant a
conviction”), with Fla. R. Crim. P. 3.600(a)(2) (directing new trial
when “verdict is contrary to . . . the weight of the evidence”). On
the one hand, a motion for judgment of acquittal tests the
sufficiency of the evidence; a trial court must determine “whether
the evidence presented is legally adequate to permit a verdict.”
Geibel v. State, 817 So. 2d 1042, 1044 (Fla. 2d DCA 2002). On the
other hand, a motion for new trial tests the weight of the evidence;
a trial court must weigh the evidence and determine credibility
just as a juror is required to do. Id. Case law is uniform that where
it is ambiguous or unclear which standard has been applied by the
trial court, reversal is required.

     In Jordan v. State, No. 1D17-2818 (Fla. 1st DCA Apr. 20,
2018), this court recently determined where the trial court’s words
“implied” that it was using the wrong standard, we were required
to reverse. In Spear v. State, 860 So. 2d 1080 (Fla. 1st DCA 2003),
we found that “[b]ecause the trial court’s findings indicate that the
court may have applied the sufficiency of the evidence standard
instead of the weight of the evidence, we reverse . . . .” (Emphasis
added).

     This interpretation is consistent with a long line of cases from
other districts. In Fergien v. State, 79 So. 3d 907 (Fla. 2d DCA
2012), much like the instant case, the defendant’s motion for new
trial included an argument that the verdict was against the

                                 4
manifest weight of the evidence. The State’s response focused on
the verdict’s legal sufficiency, and the trial court’s order denying
the motion referred only to its ruling on the motions for judgment
of acquittal. The Second District reversed because it was “unable
to conclude that the trial court properly determined that the
motion for new trial should be denied based on the weight rather
than the sufficiency of the evidence.” Id. at 908.

     In Geibel, 817 So. 2d at 1044-45, the Second District held that
it was reversible error for the trial court to deny a motion for new
trial by simply saying, “I don’t see that I have any legal basis to
grant a new trial, so I’ll deny the motion.” The Second District
reversed because it could not tell whether the trial court applied
the proper standard. ∗ Id.

     In Fulword v. State, 29 So. 3d 425 (Fla. 5th DCA 2010), the
trial court orally denied a motion for new trial based on the
manifest weight of the evidence stating, “Well, I think clearly the
matter of credibility of witnesses is a matter for the jury, as is the
issue of intent.” The Fifth District reversed because it did not
appear the trial court applied the right standard. Id.

     In Lee v. State, 117 So. 3d 848, 849 (Fla. 5th DCA 2013), the
Fifth District stated, “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 [the
defendant’s] motion is appropriate. We agree.” The Fourth District
in Velloso v. State, 117 So. 3d 903, 906 (Fla. 4th DCA 2013), cited
this legal principle with approval, stating, “Even if it were simply
unclear as to whether the trial court applied the correct standard,
reversal . . . would be required.” (Emphasis added).


    ∗
       In Geibel v. State, 817 So. 2d 1042 (Fla. 2d DCA 2002), the
Second District appears to say that even if there is no indication
that the sufficiency of the evidence standard was applied, reversal
was required. It is unnecessary for us to go that far in this case
because there are many indications that the wrong standard was
utilized.

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     The wording of the order in this case, especially the previously
emphasized words, indicates the trial court was utilizing the
sufficiency of the evidence standard rather than the manifest
weight of the evidence standard in ruling on the entire motion.

     In the first part of the order, the judge stated he was denying
the motion because he dealt with it at trial. This statement
indicates he used the sufficiency of the evidence standard, because
the manifest weight of the evidence standard would not have been
at issue during the trial. In addition, the judge’s reference to there
being evidence that would rebut the reasonable hypothesis of
innocence, if believed by the jury, also appears strictly to deal with
the sufficiency of the evidence standard. The judge’s concluding
statement focused on the sufficiency of the evidence to
demonstrate intent, which was also a reference to the sufficiency
of the evidence standard.

     In cases such as this where a motion for new trial is based at
least in part on the argument that the verdict was against the
manifest weight of the evidence, and the trial court only made
statements related to the sufficiency of the evidence standard in
denying the motion, precedent requires us to reverse and remand
for the trial court to rule on the motion using the correct standard.

                  _____________________________

Andy Thomas, Public Defender, and Kathryn Lane and Jasmine
Russell, Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Holly N. Simox, and Daniel Krumbholz, Assistant Attorneys
General, Tallahassee, for Appellee.




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