GILBERT
v.
STATE
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The Florida Supreme Court affirmed convictions for adultery, holding that the appellate court could not review the sufficiency of the evidence because the defendants failed to file a motion for a new trial in the lower court.
No, an appellate court cannot review the sufficiency of the evidence if a motion for a new trial was not filed in the lower court.
“The sole challenge is to the sufficiency of the evidence to sustain the judgment.”
This quote establishes the specific issue raised by the appellants on appeal.
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Join FLexlaw to unlock all legal intelligenceThe defendants were convicted of unlawfully living in an open state of adultery. Their sole challenge on appeal was the sufficiency of the evidence pr…
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Appeal brings for review judgments of conviction of the offense of unlawfully living in an open state of adultery.
The sole challenge is to the sufficiency of the evidence to sustain the judgment.
The record discloses no motion for new trial. Therefore, review of error predicated on insufficiency of evidence is not available. See Schmids v. Tampa Pub. Co., 72 Fla. 571, 73 So. 593; St. Andrews Bay Lbr. Co. v. Bernard, 106 Fla. 232,143 So. 159; Davis *Page 294 v. State, 47 Fla. 26, 36 So. 170; Florida Power Co. v. Cason,79 Fla. 619, 84 So. 921; Osceola Fertilizer Co. v. Beville,86 Fla. 479, 98 So. 354; 356, citing Greenblatt v. Bissell Dry Goods Co., 85 Fla. 83, 95 So. 302; Johnson v. State, 53 Fla. 42,43 So. 430; Thomas Bros. Co. v. Price, 56 Fla. 854,48 So. 262.
No reversible error appearing from the record, the judgments are affirmed.
So ordered.
Affirmed.
BROWN, C. J., WHITFIELD, BUFORD and ADAMS, J. J., concur.
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Citator
Cited By (12 total)
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State v. Wright, 224 So. 2d 300 (Fla. 1969)…in direct conflict with numerous decisions of other Florida appellate courts. He fears that this conflict will create confusion as to the proper interpretation of Rule 6.16, subd. b. The cases cited for jurisdictional conflict are: Gilbert v. State, 148 Fla. 293, 4 So. 2d 330 (1941); Jones v. State, 212 So. 2d 804 (1st DCA 1968); Kimble v. State, 208 So. 2d 471 (1st DCA 1968); and Smith v. State, 194 So. 2d 310 (1st DCA 1967). Each of these cases holds that the sufficiency of the evidence cannot be asserted…
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Winn & Lovett Grocery Co. v. Luke, 156 Fla. 638 (Fla. 1945)…the evidence to sustain the verdict. Florida cities Bus Co. v. Lewis, 107 Fla. 248, 146 So. 96; Osceola Fertilizer Company v. Beville, 86 Fla. 478, 98 So. 354; St. Andrews Bay Lumber Company, v. Bernard, 106 Fla. 232, 143 So. 159; Gilbert v. State, 148 Fla. 293, 4 So. (2nd) 330, and cases cited. Entry of judgment is not equivalent to an order over-ruling motion for new trial for the [*645] purpose of reviewing errors committed at the trial. Southard v. Johnson, 118 Fla. 713, 160 So. 2. But a motion for a…
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Smith v. State, 194 So. 2d 310 (Fla. 1st DCA 1966)…An examination of the record in this case discloses that appellant Sydney Richard Smith did not file a motion for a new trial. Thus, this Court is precluded from considering the sufficiency of the evidence as to him. Gilbert v. State, 148 Fla. 293, 4 So. 2d 330 (1941). Appellant Lawrence Lee Smith, by his attorney, filed a motion for new trial challenging the sufficiency of the evidence and such ground as to him is now properly before this Court. All of the evidence adduced at the trial was of a circumsta…
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