KENNETH CALHOUN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Calhoun appeals his conviction for assault with intent to rob, challenging the sufficiency of evidence. The Florida District Court of Appeal, finding the evidence sufficient when viewed in light most favorable to the State, affirms the conviction and holds that appellate courts cannot retry facts or substitute their judgment for the jury's verdict.
The evidence, when considered in a light most favorable to the State and along with all reasonable inferences, is sufficient to sustain the conviction. The appellate court cannot retry the case on the facts or substitute its judgment for that of the jury or trial judge. The alleged improper conduct of the judge and prosecutor lacks substantial merit.
“This court is not at liberty to retry this case on the facts. Neither is it authorized to substitute its judgment for that of the jury which rendered the verdict of guilty, nor for the discretion of the trial judge who refused to set the verdict aside and grant a new trial.”
Establishes the standard of appellate review and the limits of appellate authority in reviewing jury verdicts and trial court discretion
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Join FLexlaw to unlock all legal intelligenceCalhoun and a co-defendant were jointly charged with assault with intent to rob and assault with intent to commit murder. During trial, the co-defenda…
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Appellant and a co-defendant were jointly charged and jointly tried on an information containing two counts. The first count charged them with the offense of assault with intent to rob, and the second count with the offense of assault with intent to commit murder. During the trial appellant’s codefendant changed his plea of not guilty to guilty of aggravated assault under the second count of the information, which plea was accepted and the first count nolle prossed. Appellant was convicted under the first count of the information of assault with intent to rob, and from the judgment and sentence imposed upon him this appeal has been taken.
The principal thrust of the appeal questions the sufficiency of the evidence to sustain the judgment of conviction. We have carefully reviewed the record of the trial proceedings consisting of some 254 pages which reveals the testimony adduced by the material witnesses to be in sharp conflict. The direct evidence appearing in the record, together with all reasonable inferences deducible therefrom, when considered in a light most favorable to the State, must be held to be sufficient to sustain the verdict and judgment. The verdict was rendered by a qualified jury acceptable to both the State and appellant, and the trial was presided over by an experienced and capable trial judge. This court is not at liberty to retry this case on the facts. Neither is it authorized to substitute its judgment for that of the jury which rendered the verdict of guilty, nor for the discretion of the trial judge who refused to set the verdict aside and grant a new trial. Harvey v. State (Fla.1956), 87 So.2d 582.
We have considered the remaining assignments of error with respect to the alleged improper and prejudicial conduct of the trial judge and the county so*353licitor during -the progress of the trial, but find them to be without substantial merit. The question raised by appellant’s brief regarding the refusal of the trial court to grant a severance was not assigned as error, and therefore cannot be considered on appeal. The judgment is therefore affirmed.
Affirmed.
CARROLL, DONALD K., C. J., and WIGGINTON and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holder v. Sutherland, 191 So. 2d 439 (Fla. 1st DCA 1966)…e the court and the briefs and record on appeal having been studied, this court does not find it can substitute its judgment for that of the jury and finding no reversible error, the judgment appealed is affirmed under authority of Calhoun v. State, 136 So. 2d 352 (Fla.App. 1st, 1962). WIGGINTON, Acting C. J., and JOHNSON and SACK, JJ., concur.…
Authorities Cited
- Colburn v. City OF Lakeland, 87 So. 2d 582 (Fla. 1956)
- Harvey v. State, 87 So. 2d 582 (Fla. 1956)