           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D18-1706
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SCOTT ALAN KLINE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                          June 7, 2019


WOLF, J.

     Appellant challenges his judgments and sentences for 10
counts of child pornography. He argues it is unclear whether the
trial court used the correct standard when it denied his motion
for new trial. We find appellant failed to preserve this issue and
affirm.

     After the jury returned its verdict, appellant filed a motion
for new trial raising a number of grounds. Some grounds
challenged rulings the judge made during trial, such as the
denial of appellant’s motion for judgment of acquittal. Appellant
also alleged the verdict was contrary to the weight of the
evidence. The trial court denied the motion stating, “[t]he motion
for new trial is denied for reasons stated on the record during
trial.” Appellant did not object or seek clarification.

     On appeal, appellant notes there was no discussion during
trial of his argument that the verdict was contrary to the weight
of the evidence. Thus, he argues it is unclear whether the trial
court applied the correct legal standard to that portion of his
motion. He suggests the trial court may have applied the
sufficiency-of-the-evidence standard instead. The State argues
the court was merely referencing the grounds in the motion for
new trial that were addressed on the record, and there is no
indication that the court applied the wrong standard when
considering whether the verdict was contrary to the weight of the
evidence.

    “Defendants have the right to have the trial judge evaluate
and weigh the evidence independently of the jury’s findings to
determine whether the jury verdict was contrary to the weight of
the evidence.” McCloud v. State, 150 So. 3d 822, 823 (Fla. 1st
DCA 2014) (quoting Kelley v. State, 16 So. 3d 196, 197 (Fla. 1st
DCA 2009)).

     This court has reversed where “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
standard.” Spear v. State, 860 So. 2d 1080 (Fla. 1st DCA 2003)
(emphasis added). However, this court has never expressly
discussed whether this error must be preserved or whether it
constitutes fundamental error.

      Perhaps if a trial court expressly applied the wrong standard
to a claim that the verdict was contrary to the weight of the
evidence, such an error might be found to be fundamental. See,
e.g., Velloso v. State, 117 So. 3d 903, 905–06 (Fla. 4th DCA 2013)
(reversing where the trial court explicitly refused to weigh the
evidence in response to a motion for new trial, stating its only
role was to review for the legal sufficiency of the evidence).

    However, where it is unclear whether the trial court used the
wrong standard, we find the potential that the trial court erred
does not reach the level of fundamental error.

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     To remand for clarification now when counsel had the
opportunity to ask for clarification but simply failed to do so
would constitute a waste of judicial resources. See Fla.
Emergency Physicians-Kang and Associates, M.D., P.A., v. Parker,
800 So. 2d 631, 636 (Fla. 5th DCA 2001) (“It is the function of the
appellate court to review errors allegedly committed in the trial
court, not to entertain for the first time on appeal, issues which
the complaining party could have, and should have, but did not,
present to the trial court.”). Had the trial court been apprised of
the ambiguity in its ruling, it could have easily taken care of the
potential problem during the hearing on the motion for new trial.

    Because appellant failed to preserve this issue for appeal, we
AFFIRM.

OSTERHAUS and JAY, JJ., concur.



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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Jasmine Russell, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.




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