               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


MISTY STODDARD,                              )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D14-4198
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 12, 2016.

Appeal from the Circuit Court for Sarasota
County; Frederick P. Mercurio, Judge.

Howard L. Dimmig, II, Public Defender,
and J.L. "Ray" LeGrande, Special Assistant
Public Defender, Bartow,
for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa,
for Appellee.


PER CURIAM.


             Misty Stoddard appeals her judgment and sentence for felony murder.

She argues that the trial court erroneously denied her motion for judgment of acquittal.

However, Ms. Stoddard's argument on appeal differs substantially from the argument
she raised before the trial court on her motion. Thus, she failed to preserve the

argument she now presents to us. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985).

After carefully reviewing the record for fundamental error, we cannot say the trial court

erred in denying her motion. Accordingly, we affirm the judgment and sentence.

              Affirmed.


LUCAS, J., Concurs.
ALTENBERND, J., Concurs with opinion.
VILLANTI, C.J., Concurs with opinion.




ALTENBERND, Judge, Concurring.

              I agree with the court's decision, and I agree that it accurately states the

current rule of law. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (holding

that "in order for an argument to be cognizable on appeal, it must be the specific

contention asserted as legal ground for the objection, exception, or motion below").

That said, when a motion for judgment of acquittal is well taken, I have never

understood why an attorney's failure to make a sufficient motion for judgment of

acquittal is not ineffective assistance on the face of the record. Even a marginally

prepared attorney should know the elements of the offense for which a client is on trial.

That marginally prepared lawyer ought to be expected to listen to the evidence closely

enough to know whether the State failed to prove an essential element of the offense.




                                            -2-
There rarely, if ever, is a tactical reason for a lawyer not to move for a judgment of

acquittal when the client is entitled to be acquitted.

              Thus, when I review a case like this for "fundamental" error, I actually

review the issue more or less as I would if it were preserved. Judge Bilbrey's recent

concurrence effectively does the same. See Morales v. State, 170 So. 3d 63, 68 (Fla.

1st DCA 2015) (Bilbrey, J., concurring) ("Here, the failure to make a motion for judgment

of acquittal on the specific issue of premeditation is not obvious ineffective assistance of

counsel because there was sufficient direct and circumstantial evidence of

premeditation for the issue to go to the jury."). In this case, I conclude that Ms.

Stoddard would not have been entitled to an acquittal even if her attorney had made a

model argument for acquittal.

              But under the current law, following a direct appeal, when a postconviction

court receives a motion alleging ineffective assistance of counsel in a case involving an

attorney's failure to make an adequate motion for judgment of acquittal, the

postconviction court has no way to know for certain that the appellate court on direct

appeal determined that the evidence was sufficient to overcome a proper motion for

judgment of acquittal. The postconviction court is therefore usually compelled to peruse

the entire trial transcript to determine if a proper motion would have been granted. It

seems to me for many practical and due process reasons that the rule announced in

Steinhorst should not apply to motions for judgment of acquittal. Instead, the sufficiency

of the evidence to support a conviction should be reviewable de novo on direct appeal

even when the motion for judgment of acquittal is inadequate.




                                             -3-
VILLANTI, Chief Judge, Concurring.

              I concur in the majority opinion because it accurately reflects the current

state of the law which we are required to follow. But I also concur in Judge Altenbernd's

critique of that law because it includes no exception for a review of the sufficiency of the

evidence when defense counsel makes only a bare bones motion for judgment of

acquittal. The lack of any exception is why many trial judges feel an obligation to

ensure that defense counsel actually argues a motion for judgment of acquittal. The

State will never voice an objection to the defense being prompted to argue such a

motion because no one is interested in participating in a new trial due to a technical

deficiency in the first one. And even a skeletal motion for judgment of acquittal can be

sufficient to deal with a case that lacks evidence on an element of the crime charged.

But many trial judges are fearful of taking such an approach because they do not want

to be perceived as activists. Hence, there is a need to create a minor exception to the

general preservation rule of Steinhorst which will simplify review in the long run.




                                            -4-
