ANDREW J. MORRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andrew Morris appeals his conviction for unlawful possession of a controlled substance and resisting arrest, and his sentence of five years imprisonment. The court affirmed his conviction but reversed his sentence, finding sentencing error based on inadequate consideration of limitations on departure sentences and improper imposition of a Public Defender's lien without notice.
The conviction is affirmed because Morris failed to preserve his challenge to the judgment of acquittal denial by failing to renew the motion at the close of all evidence. However, the sentence is reversed and remanded because the trial court erred in departing upward based on the unscored juvenile record without considering the limitation that such departure cannot exceed the sentence the juvenile would have received if the record had been scored, and because the Public Defender's lien was imposed without proper notice.
[1] A motion for judgment of acquittal is not preserved for appellate review unless renewed at the close of all the evidence, even if initially made at the close of the State…
[2] A non-scoreable juvenile record may be considered as a reason for departure from a recommended sentence, but the departure sentence cannot exceed what the juvenile would…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A motion for judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant, but after introduction of evidence by the defendant, the motion for judgment of acquittal must be renewed at the close of all the evidence.”
Establishes the procedural requirement for preserving a motion for judgment of acquittal by renewal at the close of all evidence.
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Join FLexlaw to unlock all legal intelligenceMorris was convicted of unlawful possession of a controlled substance and resisting arrest without violence. His sentencing scoresheet reflected a sen…
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HARRIS, Judge.
Andrew J. Morris was convicted of the unlawful possession of a controlled substance and resisting arrest without violence. Although his scoresheet reflected a sentence of any non-state incarceration, the judge departed and sentenced Morris to five years incarceration based on his unscored juvenile record. Morris appeals his conviction and his sentence. We affirm the conviction but reverse for a new sentencing.
Morris’ claim that the court erred in not granting his motion for judgment of acquittal was not preserved for appeal. Although he properly made the motion at the conclusion of the State’s case, he did not renew the motion at the conclusion of his case. Rule 3.380(b), Florida Rules of Criminal Procedure provides:
A motion for judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant, but after introduction of evidence by the defendant, the motion for judgment of acquittal must be renewed at the close of all the evidence. Such motion must fully set forth the grounds upon which it is based.
In State v. Pennington, 534 So. 2d 393 (Fla.1988), the supreme court noted that the above cited rule expressly states that a defendant’s motion for judgment of acquittal at the close of the State’s case is not waived by the defendant’s subsequent introduction of evidence if properly preserved by a motion at the close of all the evidence. Therefore, both the rule and Pennington (at least by implication) require that a motion for judgment of acquittal must be repeated at the close of all the evidence in order to preserve the denial of such motion for review on appeal.
We agree with Morris, however, that the trial court erred in sentencing both by not having or providing us with sufficient information and also by setting a Public Defender’s lien without proper notice. Although the nonscoreable juvenile record may be considered as a reason for departure, such departure may be no greater than the sentence which the juvenile would have received had the juvenile record been scored. See Puffinberger v. State, 581 So. 2d 897 (Fla.1991). This record does not reflect that the trial court considered what that limitation might be.
We, therefore, affirm the conviction but reverse and remand for a new sentencing in conformity with Pennington and for a new determination of the Public Defender’s lien after proper notice.
AFFIRMED in part; REVERSED in part and REMANDED.
COBB and W. SHARP, JJ., concur.
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Morris v. State, 721 So. 2d 725 (Fla. 1998)…HARDING, Chief Justice. We have for review Morris v. State, 689 So. 2d 1275 (Fla. 5th DCA 1997), which expressly and directly conflicts with the opinion in In re T.M.M., 560 So. 2d 805 (Fla. 4th DCA 1990). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. For the reasons expressed belo…
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Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998)…y evidence, a motion for judgment of acquittal made at the end of the state’s case-in-chief must be renewed at the close of all the evidence; otherwise the motion is waived. See, e.g., State v. Pennington, 534 So. 2d 393 (Fla.1988); Morris v. State, 689 So. 2d 1275 (Fla. 5th DCA), review granted, 698 So. 2d 848 (Fla.1997). Even if the issue has been adequately preserved, however, it is without merit. Our review of the evidence in a light most favorable to the state satisfies us that it was sufficient to permit…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Puffinberger v. State, 581 So. 2d 897 (Fla. 1991)
- State v. Pennington, 534 So. 2d 393 (Fla. 1988)