ROBERT LEE KIMBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for assaulting a police officer, holding that it could not review the sufficiency of the evidence because the trial court had not been given the opportunity to rule on the issue via a motion for new trial.
No, the appellate court cannot consider an appeal based on the insufficiency of the evidence if the trial court was not first given the opportunity to rule on that specific issue through a motion for a new trial.
“The sole point argued as error on this appeal deals with the sufficiency of the evidence to sustain the verdict.”
Identifies the main issue raised by the appellant on appeal.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of assaulting a police officer with intent to do violence. His defense was that the officer did not inform him of the arre…
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The appellant, Kimble, seeks review of his conviction, after jury trial, for the offense of assaulting a police officer with intent to do violence. As. a defense in the trial court Kimble attempted to establish that the police officer did not inform him that he was being arrested and that excessive force was used by the police officer in making the arrest before he, Kimble, resisted the arrest by violence. We note from the transcript of testimony that there was conflict in the testimony of the witnesses in this regard which was up to the jury to weigh and resolve.
The sole point argued as error on this appeal deals with the sufficiency of the evidence to sustain the verdict. The record on appeal reflects that the trial judge was not given the opportunity to rule on this alleged error by a motion for new trial. Therefore, we are precluded on this appeal from considering error based on the *472insufficiency of the evidence. Gilbert v. State, 148 Fla. 293, 4 So.2d 330 (1941); Smith v. State, 194 So.2d 310 (Fla.App.1st, 1967). Hence, the conviction and judgment appealed is affirmed.
WIGGINTON, C. J., and JOHNSON and SPECTOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Wright, 224 So. 2d 300 (Fla. 1969)…nflict 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 as a ground for reversal in an appellate court unless the appellant has previously filed a motion fo…
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York v. State, 232 So. 2d 767 (Fla. 4th DCA 1969)…his omission is fatal to defendant’s position and he cannot now for the first time raise the question of insufficiency of evidence. State v. Wright, 224 So. 2d 300, Supreme Court of Florida opinion filed June 18, 1969; Kimble v. State, Fla.App.1968, 208 So. 2d 471; Jones v. State, Fla.App.1968, 212 So. 2d 804; Gilbert v. State, 1941, 148 Fla. 293, 4 So. 2d 330. Next, defendant is aggrieved by a clause found in the court’s charge on self defense. F.S. Section 918.10(4), F.S.A., provides: “(4). No party may…
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Wright v. State, 216 So. 2d 229 (Fla. 2d DCA 1968)…nsideration we are met with an obj ection. The Attorney General argues that sufficiency of the evidence in any respect is not open for review by us because no motion for new trial was filed or ruled upon. The cases of Kimble v. State, Fla.App.1968, 208 So. 2d 471; Smith v. State, Fla.App.1967, 194 So. 2d 310; and Jones v. State, Fla.App.1968, 212 So. 2d 804 are cited in support. These cases, all from the First District Court, do indeed hold that where a motion for new trial is not filed in the trial Court, t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gilbert v. State, 4 So. 2d 330 (Fla. 1941)
- Smith v. State, 194 So. 2d 310 (Fla. 1st DCA 1966)