EDWARD C. MELKUN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Melkun challenged his conviction for receiving a stolen motorcycle on the ground of insufficient evidence. The Florida appellate court affirmed the conviction and held that, regardless of evidence sufficiency, an appellate court cannot review the issue without a trial court order denying the motion for new trial.
The court held that the evidence was overwhelmingly sufficient to sustain the jury's guilty verdict. Additionally, the court held that a trial court's order denying (or ruling on) a motion for new trial is an essential prerequisite for appellate review of sufficiency of evidence, and mere filing of the motion without a trial court order is insufficient.
[1] A motion for a new trial is essential for an appellate court to review the sufficiency of the evidence to convict.
[2] An appellate court cannot review the sufficiency of the evidence to convict if the trial court has not ruled on a motion for a new trial.
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Join FLexlaw to unlock all legal intelligence“The evidence was ample to convict.”
The court's determination that the evidence of guilt was sufficient to sustain the jury's verdict.
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Join FLexlaw to unlock all legal intelligenceOn February 19, 1970, Melkun was charged with unlawfully receiving and concealing a stolen motorcycle. A jury trial was held in May 1970 and the jury …
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Appellant Edward C. Melkun appeals to this Court from a judgment of conviction entered against him by the Pinellas County Circuit Court.
On February 19, 1970, Melkun was informed against for the offense of unlawfully receiving and concealing a described motorcycle, belonging to another person, knowing the same to have been recently stolen. Upon plea of not guilty, he was tried by jury which, on May 18, 1970, returned a verdict of guilty. In due course he was adjudged guilty and sentenced to serve a term of imprisonment in the State Prison. It is from this judgment and sentence that Melkun appeals to this Court.
The only point urged here for reversal is the insufficiency of the evidence to convict. But we have examined the record thoroughly and find the evidence to be overwhelmingly sufficient to sustain the jury’s verdict. The tracks of the stolen motorcycle were traced to Melkun’s garage where it was found. Melkun told the investigating officer the motorcycle was brought to his garage by “two guys” and that “he thought it was strange that they brought it there, and he thought it might have been stolen” or, to use his exact words at the time he “thought it might have been hot.” Melkun testified in his own behalf and in many important respects reiterated what he told the officer originally. The evidence was ample to convict.
In addition, the record here reflects no order denying Melkun’s motion for new trial filed after verdict. Such motion for new trial has been held to be essential for an appellate Court to review the issue of sufficiency of evidence to convict. State v. Owens, Fla.1970, 233 So.2d 389; State v. Contreras, Fla.1969, 227 So.2d 306.
Melkun makes the anomalous contention here that the cited cases require only, as a condition prerequisite to consideration of sufficiency of the evidence upon appeal, the filing of the motion for new trial and not necessarily the entry of any order upon the motion. Melkun contends that because he filed such motion for new trial the sufficiency of evidence to convict is available for consideration by this Court even though no order apparently was entered on the motion. Such contention is clearly untenable. The obvious reason for requiring filing of such motion for new trial as an essential prerequisite to consideration of the sufficiency of evidence on appeal is to enable the trial Court to consider and weigh the evidence in the calmness of the after-verdict and if found in any material respect deficient to set it aside and have further *147proceedings in the case if necessary. This could not be done if the trial Court never ruled on the motion.
The judgment appealed is therefore—
Affirmed.
HOBSON and McNULTY, JJ„ concur.
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Citator
Cited By
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Norris v. State, 249 So. 2d 746 (Fla. 4th DCA 1971)…7, 200 So. 2d 640; Hall v. State, Fla.App.1965, 179 So. 2d 372; Sinclair v. State, Fla.1950, 46 So. 2d 453; [*747] Peters v. State, Fla.1954, 76 So. 2d 147; Victer v. State, Fla.1965, 174 So. 2d 544; Melkun v. State, Second District Court of Appeal, 244 So. 2d 145, filed February 17, 1971; State v. Owens, Fla.1970, 233 So. 2d 389; State v. Contreras, Fla.1969, 227 So. 2d 306; State v. Kahler, Fla.1970, 232 So. 2d 166; Warren v. State, Fla.App.1969, 227 So. 2d 213; F.S. section 918.10(4), F. S.A.; Grace v. Sta…
Authorities Cited
- State v. Owens, 233 So. 2d 389 (Fla. 1970)
- In re Petition to Suspend James M. Edwards, 227 So. 2d 306 (Fla. 1969)