ERIC DEMON CARPENTER

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D19-0105 _____________________________

ERIC DEMON CARPENTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Russell L. Healey, Judge.

March 23, 2020

WOLF, J.

Appellant asserts that the trial court applied the wrong standard in ruling on his motion for a new trial. We find the issue was not preserved and affirm.

FACTS

Appellant was charged with five counts of sale or delivery of cocaine. Following a jury trial, Appellant was acquitted of the first four counts but found guilty as charged on count five. Following the conviction, defense counsel filed a motion for new trial. The motion for new trial said:

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1. The jury found Defendant guilty of one count of Sale

of Cocaine on December 4, 2018, and acquitted Defendant of four other counts of Sale of Cocaine. 2. This Court erred in not granting Defendant’s Motion for Judgment of Acquittal made at the close of the State’s case, as well as at the close of all evidence.

3. The verdict is contrary to the weight of the evidence.

4. The verdict is contrary to the law.

At sentencing, the court heard the motion for a new trial: Court: All right. First order of business is motion for new trial. State: Yes, Your Honor, I had filed that previously. I want to stand on my motion without additional argument. Court: Mr. Duffy. State: No argument beyond the defendant had a fair trial, Your Honor. He was found guilty on one of the five counts. Court: All right. Based on the review of the motion, I will rely on the previous rulings made during the course of the trial. Motion for new trial is denied. Immediately after the denial, witnesses were called, and the sentencing began. The judge entered a form order denying the motion for new trial that simply said “denied.”

ANALYSIS

Where a defendant argues in a motion for new trial that the verdict is against the manifest weight of the evidence, “[d]efendants have the right to have the trial judge evaluate and weigh the evidence independently of the jury’s findings to determine whether the jury verdict was contrary to the weight of the evidence.” McCloud v. State, 150 So. 3d 822, 823 (Fla. 1st DCA

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2014) (quoting Kelley v. State, 16 So. 3d 196, 197 (Fla. 1st DCA 2009)). Here the trial court never referred to the standard it was utilizing in denying the motion, so it is unclear what standard was used. The defendant, however, never sought clarification or objected. We, therefore, must determine whether the issue was preserved. In Kline v. State, 274 So. 3d 525 (Fla. 1st DCA 2019), we said the issue was not preserved where the trial court denied the motion by stating, “[t]he motion for new trial is denied for reasons stated on the record during trial” and Appellant did not object or seek clarification. That language is almost identical to the language the trial judge used in this case. We specifically stated in Kline: Perhaps if a trial court expressly applied the wrong standard to a claim that the verdict was contrary to the weight of the evidence, such an error might be found to be fundamental. See, e.g., Velloso v. State, 117 So. 3d 903, 905–06 (Fla. 4th DCA 2013) (reversing where the trial court explicitly refused to weigh the evidence in response to a motion for new trial, stating its only role was to review for the legal sufficiency of the evidence). However, where it is unclear whether the trial court used the wrong standard, we find the potential that the trial court erred does not reach the level of fundamental error. Id. at 526. In Knighton v. State, 45 Fla. L. Weekly D250 (Fla. 1st DCA Jan. 31, 2020), we relied on Kline to conclude that where the trial court used similar language, any alleged error was not fundamental. In Smith v. State, 287 So. 3d 1266 (Fla. 1st DCA 2019), we reversed a trial court for applying the wrong standard. In that case, however, the trial court applied the wrong standard by saying the evidence was “sufficient.” That is not what occurred in this case. Here, there is no reference to the wrong standard. Thus, the issue was not properly preserved and does not constitute fundamental error.

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We, therefore, AFFIRM. ROBERTS and ROWE, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.