KELLY ELIZABETH LOUDERMILK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of continuance motion but reversed and remanded because trial court applied wrong legal standard (sufficiency of evidence instead of weight of evidence) to motion for new trial in drug trafficking case.
Trial court erred by applying the sufficiency of the evidence standard rather than the weight of the evidence standard when ruling on defendant's motion for new trial.
[1] When ruling on a defendant's motion for new trial, the trial court must apply the weight of the evidence standard, not the sufficiency of the evidence standard.
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Join FLexlaw to unlock all legal intelligenceKelly Elizabeth Loudermilk was convicted of trafficking in oxycodone and conspiracy to traffic in oxycodone. She sought a continuance to secure testim…
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Kelly Elizabeth Loudermilk appeals her judgment and sentence for trafficking in oxycodone and conspiracy to traffic in oxy-codone. Loudermilk contends that the trial court erred in: 1) denying her motion for continuance to secure the testimony of two codefendants that she alleged would support an entrapment defense; and 2) applying the incorrect legal standard to her motion for new trial. We affirm as to the first issue without further discussion but reverse and remand as to the second.
The proper standard to address a defendant’s motion for new trial is the weight of the evidence. See Lee v. State, 117 So.3d 848, 849 (Fla. 5th DCA 2013); Santiago v. State, 874 So.2d 617, 625 (Fla. 5th DCA 2004). In this ease, the trial court incorporated its order denying Loudermilk’s motion for judgment of acquittal, in which it appliecj a sufficiency of the evidence standard, into its order denying her motion for new trial. Accordingly, these orders suggest that the trial court also utilized a sufficiency of the evidence standard when considering Loudermilk’s motion for new trial. We therefore reverse and remand on this issue for the trial court to consider Louderrailk’s motion for new trial pursuant to the weight of the evidence standard. See King v. State, 183 So.3d 1071, 1072 (Fla. 5th DCA 2015).
AFFIRMED in part; REVERSED in part; REMANDED.
SAWAYA, TORPY and BERGER, JJ., concur.
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Citator
Cited By
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Paul v. State, 219 So. 3d 272 (Fla. 5th DCA 2017)…enied Paul’s motion for a new trial using the sufficiency of the evidence standard. We therefore reverse and remand for the trial court to consider Paul’s motion for new trial pursuant to the weight of the evidence standard. See Loudermilk v. State, 211 So. 3d 356, 356 (Fla. 5th DCA 2017). REVERSED and REMANDED. COHEN, C.J., ORFINGER and BERGER, JJ,, concur.…
Authorities Cited
- Santiago v. State, 874 So. 2d 617 (Fla. 5th DCA 2004)
- Cherryl L. Gaschler v. State, 117 So. 3d 848 (Fla. 4th DCA 2013)
- LEE v. State, 117 So. 3d 848 (Fla. 5th DCA 2013)
- King v. State, 183 So. 3d 1071 (Fla. 5th DCA 2015)