THOMAS SOLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Solis was convicted of unlawfully assaulting his eleven-year-old daughter. The Florida District Court of Appeal reversed his conviction and granted a new trial because the trial judge abused his discretion by denying a motion for new trial without recognizing that when the sole material prosecution witness gave conflicting sworn testimony at trial and at a post-trial hearing, it was for the jury—not the trial judge—to determine which testimony was truthful.
The court held that it is an abuse of discretion to deny a motion for new trial when it is apparent that the sole material prosecution witness gave two conflicting stories under oath—one at trial and one thereafter. The trial judge may not determine which testimony was truthful, as that function belongs exclusively to the jury. A new trial must be granted so that another jury can review the evidence in light of the recanting testimony.
[1] A trial court abuses its discretion by denying a motion for a new trial when a hearing reveals that the sole material prosecution witness has given conflicting sworn test…
[2] A trial judge should not determine the truthfulness of conflicting witness testimony at a hearing on a motion for a new trial, as this usurps the function of the jury.
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Join FLexlaw to unlock all legal intelligence“It is not within the province of the trial judge at that juncture to determine on which of the two occasions the witness was telling the truth. To do so would be preempting the function of a trial jury.”
Establishes that when a witness gives conflicting sworn testimony, the judge cannot decide which is truthful; that determination belongs exclusively to the jury.
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Join FLexlaw to unlock all legal intelligenceThomas Solis was charged with unlawfully assaulting and attempting a sexual act upon his eleven-year-old daughter. At trial, the victim testified agai…
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Thomas Solis appeals his conviction for unlawfully assaulting a female child, to-wit: his daughter who was then and there eleven years of age, while attempting a sexual act upon her. We reverse.
Appellant raises four points on appeal only one of which need be discussed since it is dispositive. This point relates to a motion for new trial which was timely filed but not ruled upon until after the judgment and, sentence. The principal allegation relied upon in the motion was that the eleven year old victim lied at trial and admitted thereafter that she lied. A hearing was held on this issue and the little girl admitted that she in fact did lie at trial, although even this latter testimony was somewhat impeached. The trial judge, apparently assuming that his function at such hearing was to determine the truth vel non of her recanting testimony, found that she was then and there telling a lie and had theretofore told the truth at trial. Herein lies the error.
Initially we say that even if it be said after-discovered perjury may not be the basis of a collateral attack in a criminal case, e. g., to support a writ of error coram nobis,1 nevertheless we are of the view that it is an abuse of discretion to deny a motion for new trial, which is a direct attack, when it is apparent to the trial judge at a hearing thereon that the sole material prosecution witness told under oath two conflicting stories relating to guilt, one at trial and the other thereafter. It is not within the province of the trial *11judge at that juncture to determine on which of the two occasions the witness was telling the truth.2 To do so would be preempting the function of a trial jury. Stated otherwise, the controlling point is that it cannot be said, as a matter of law, that a jury had to believe the first testimony and could not, as the trial judge undertook to do, believe the second if it were before them, or consider it at all as it might bear on a possible reasonable doubt concerning the truth of the first.
Additionally, here, it is apparent that appellant and his family are Spanish-speaking, migrant workers with little if any education, and all have considerable difficulty with the English language. This is particularly evident as to the minor complainant. Moreover, her téstimony was virtually uncorroborated. So to begin with, the trial of the case was fraught with language and probative difficulties. Withal, we think the state’s case is inconclusive even though it “touched all the bases” and made a prima facie showing. Accordingly, this case falls, we think, within the purview of those cases3 wherein, considering all, the interests of justice require that a new trial be had and another jury review the evidence. Especially ought this be done here in the new light of apparent perjured testimony as discussed earlier.
The judgment of conviction and sentence are hereby reversed and the appellant is awarded a new trial.
PIERCE, C. J., and LILES, J., concur.
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Baker v. State, 336 So. 2d 364 (Fla. 1976)…State v. Sears, 148 Fla. 89, 3 So. 2d 721, 722 (1941). State v. Strickland, 172 So. 2d 260 (Fla.App.2d 1965). Only very rarely should the trial court’s determination be disturbed, see Hicks v. State, 127 Fla. 669, 173 So. 815 (1937); Solis v. State, 262 So. 2d 9 (Fla.App.2d 1972) cert. den., 265 So. 2d 372 (Fla.1972); Douth v. State, supra, and especially is this so if the trial court grants a new trial in a criminal case on the basis of newly discovered evidence, because “[c]ourts . . . are sometimes indul…
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Mollica v. State, 374 So. 2d 1022 (Fla. 2d DCA 1979)…l. On appeal this court concluded that it was impossible for the trial judge to distinguish the witness’ true statements from those that were false and held on grounds of fairness that the defendant should be granted a new trial. In Solis v. State, 262 So. 2d 9 (Fla. 2d DCA 1972), the defendant was convicted for unlawfully assaulting his eleven year old daughter while attempting a sexual act upon her. On a motion for new trial the daughter, who was the sole material prosecution witness, testified that she…1 / 2
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Weston v. State, 351 So. 2d 75 (Fla. 1st DCA 1977)…w trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involved a confession of perjury * * * Appellant relies strongly upon the opinion of the Second District Court of Appeal in Solis v. State, 262 So. 2d 9, 11 (Fla.2nd DCA 1972), which states, in part: “It is not within the province of the trial judge at that juncture to determine on which of the two occasions the witness was telling the truth. To do so would be preempting the function of a trial jur…
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
- Fuller v. State, 92 Fla. 873 (Fla. 1926)
- Lowe v. State, 154 Fla. 730 (Fla. 1944)
- Milford Garner v. State, 134 Fla. 252 (Fla. 1938)
- O'Brien v. State, 206 So. 2d 217 (Fla. 2d DCA 1968)