          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4436
                  _____________________________

CHAD VAUGHN MORELAND,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                        September 5, 2018


PER CURIAM.

     Chad Vaughn Moreland appeals his conviction for resisting an
officer with violence, claiming that the trial court used the wrong
standard in denying his motion for a new trial. We disagree and
affirm.

     After a jury found Appellant guilty of resisting an officer with
violence, Appellant moved for a new trial. His motion claimed that
the court erred in three prior rulings and that the verdict was
against both the weight and sufficiency of the evidence. Appellant
listed five reasons specifically that he was due a new trial:
    1. The Court erred in not granting Defendant’s Motion for
    Judgment of Acquittal made at the close of the State’s
    case.

    2. The Court erred in not granting Defendant’s Motion for
    Judgment of Acquittal made at the close of all the
    evidence.

    3. The verdict is contrary to the weight of the evidence.

    4. The verdict is contrary to the law.

    5. The Court erred in denying the Defendant’s [earlier]
    motion for mistrial . . . .

At a hearing, the court summarily denied Appellant’s new trial
motion saying: “The Court will rely on the rulings previously made
in this case, and I will deny the motion for new trial at this time.”

     Appellant now argues that we should reverse because the trial
court used the wrong standard in denying his new trial motion. He
asserts that instead of acting as an “additional juror” to weigh the
evidence, the trial court incorrectly applied a sufficiency of the
evidence standard. See Moore v. State, 800 So. 2d 747, 749 (Fla.
5th DCA 2001) (“[I]n 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 . . . but the weight of the evidence
does not appear to support the jury verdict.”). Appellant makes
much of the trial court’s stated reliance on previous rulings to
further its point.

     But we do not agree that the language in the trial court’s order
shows that it used the wrong standard. We recognize first that “[a]
trial court is not compelled to use ‘magic words’ when ruling on a
motion for new trial.” Velloso v. State, 117 So. 3d 903, 905 (Fla. 4th
DCA 2013). In this instance, the trial court’s ruling included two
independent clauses that directly corresponded with the motion’s
arguments. The judge stated: “The Court will rely on the rulings
previously made in this case, and I will deny the motion for new
trial at this time.” (Emphasis added). We understand the initial

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(italicized) part of this statement to correspond to the challenges
stated in the new trial motion to the court’s previous orders (see
reasons 1, 2, and 5 above). The trial court decided at the hearing
that it would not depart from its previous rulings on the motions
for JOA and mistrial.

      The other part of the trial court’s ruling (see underlined above)
simply denied the new trial motion without any comment. The
court’s subsequent written order also cursorily “Denied” the new
trial motion without an explanation. Nothing in this summary
style of denying the motion suggests that the trial court mistook or
failed to apply the correct new trial standard. In the absence of
demonstrated error, orders on new trial motions come to appellate
courts cloaked with a presumption of correctness in which
reasonable inferences and deductions must be taken in a manner
favorable to affirming a trial court’s ruling, not reversing it. See,
e.g., Allstate Ins. Co. v. Wood, 535 So. 2d 699, 700 (Fla. 1st DCA
1988) (noting that new trial rulings “will not be disturbed unless
it appears clear and patent on the record that prejudicial error
occurred”). See also Ward v. Hopkins, 81 So. 2d 493, 494 (Fla. 1955)
(“It is well settled that the granting or denying of a motion for a
new trial rests in the sound judicial discretion of the trial Judge
and that his order is entitled to a presumption of correctness.”).

     We therefore affirm, because this is not a case in which the
order’s language shows that the trial court employed an incorrect
legal standard. Compare, e.g., Velloso, 117 So. 3d at 905 (reversing
where “the record shows that the trial court incorrectly applied a
sufficiency of the evidence standard”) with Bell v. State, 2018 WL
2139335 *1 (Fla. 1st DCA, May 10, 2018) (affirming where
appellant failed to demonstrate error).

    AFFIRMED.

B.L. THOMAS, C.J., and OSTERHAUS J., concur; BILBREY, J., dissents
with written opinion.




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                  _____________________________

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

BILBREY, J., dissents.

    Chad Vaughn Moreland challenges his conviction for resisting
an officer with violence arguing the trial court erred by employing
the wrong standard while considering his motion for a new trial. I
agree and would reverse and remand for additional proceedings.
Because the majority affirms, I respectfully dissent.

     After the jury returned a guilty verdict, Moreland moved for a
new trial raising several grounds including the ground that the
verdict was contrary to the weight of the evidence. Moreland also
argued that the verdict was contrary to law, that the trial court
erred in denying his motions for a judgment of acquittal, that the
trial court erred in denying his motion for a mistrial, and that the
trial court erred in denying an objection made with regard to the
State’s rebuttal closing argument. The trial court later heard
additional argument on the motion for a new trial, and after such
argument was concluded, the trial court announced: “The Court
will rely on the rulings previously made in this case, and I will
deny the motion for new trial at this time.” A written order
thereafter entered summarily denying the new trial motion.

     Moreland argues that the trial court used an incorrect
standard when denying his new trial motion. I agree. As this court
has recently explained, “[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.” Jordan
v. State, 244 So. 3d 1178, 1179 (Fla. 1st DCA 2018) (citing Fla. R.
Crim. P. 3.600(a)(2); Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla.
1981)). The standard governing a motion for a new trial is
different from the one used by a court in ruling on a motion for a
judgment of acquittal, which looks at the sufficiency of the
evidence. Jordan; see also Velloso v. State, 117 So. 3d 903, 905
(Fla. 4th DCA 2013). The standard regarding a new trial motion

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also differs from the standard governing a motion for a mistrial
which requires a trial court to evaluate an error to determine if it
is “so prejudicial that it vitiates the entire trial, depriving the
defendant of a fair proceeding.” Jennings v. State, 123 So. 3d 1101,
1125 (Fla. 2013) (quoting Floyd v. State, 913 So. 2d 564, 576 (Fla.
2005)). Needless to say, a trial court is not acting as a juror when
it passes on an evidentiary objection or when it considers an
objection to closing argument.

     As the majority observes, “[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.” Velloso, 117 So. 3d at 905 (quoting Geibel
v. State, 817 So. 2d 1042, 1045 (Fla. 2d DCA 2002)). In referencing
its prior rulings, the trial court here was no doubt referring to its
prior denial of Appellant’s motions for a judgment of acquittal and
the motion for mistrial, as well as its ruling as to closing argument.
Such prior rulings would not have required the trial court to have
acted as “an additional juror” in assessing the weight of the
evidence against Appellant as required by rule 3.660(a)(2), Florida
Rules of Criminal Procedure, and the case law interpreting the
rule. The explicit reference to prior rulings distinguishes the
instant case from Bell v. State, -- So. 3d --, 43 Fla. L. Weekly
D1052c, D1052c, 2018 WL 2139335, *1 (Fla. 1st DCA May 2018),
where there was “nothing to indicate” the wrong standard was
employed. Further, the parsing of the trial court’s ruling, which
was an oral ruling memorialized by a court reporter, identifies one
possible interpretation, but does not establish a definitive one. It
should be noted that “[e]ven if it were simply unclear as to whether
the trial court applied the correct standard, reversal for a new
hearing on the motion for new trial would be required.” Velloso,
117 So. 3d at 906.

     Accordingly, I would reverse and remand to the trial court to
determine whether the verdict was against the weight of the
evidence. In such a case, if the trial court were to conclude that
the verdict was not contrary to the weight of the evidence, it could
again deny the motion for a new trial and thereafter enter a new
judgment and sentence. See Jordan; Palmer v. State, 196 So. 3d
1289, 1290 (Fla. 1st DCA 2016).


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                _____________________________

Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Amanda Stokes,
Assistant Attorney General, Tallahassee, for Appellee.




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