Crenshaw v. StateCrenshaw v. State
Michael Allen, Public Defender, Lаrry G. Bryant, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., for appellee.
WILLIS, BEN C. (Ret.), Associate Judge.
Crenshaw appeals from his conviction of lewd and lascivious assault on a сhild less than 14 years of age in contravention of
The evidence against Crenshaw at trial consisted of the testimony of the child, approximately seven years of agе, that on one occasion he had exposed himself to her in the shower and on another that he touched her vaginal area with his penis while she was in bed. The child hаd previously related these incidents to the pediatrician who was treating her fоr a slight vaginal discharge. The pediatrician testified that his examination had revealed no physical trauma and that he could not say with certainty that the discharge had been caused by an assault. A caseworker testified for the State that the child hаd demonstrated the incidents for her using anatomically correct dolls.
Crenshaw testified on his own behalf, denying the crime. The child‘s mother also testified for the defense, denying that the child ever told her of the incidents; this testimony was impeached by the casewоrker. The jury returned a verdict finding Crenshaw guilty as charged and he was sentenced to 15 years incarceration. His court-appointed private counsel filed no motiоn for new trial and withdrew from the case after filing the necessary documents for this appeal.
Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), established that an appellate court cannot reverse а conviction on the ground that the verdict is contrary to the weight of the evidencе. Tibbs at 1123. However, the court was specific that, based on
In Robinson v. State, 462 So. 2d 471 (Fla. 1st DCA 1984) (Robinson II), the defendant contended that in the interest of justiсe his conviction should be reversed and the case remanded for a new trial bаsed on defense counsel‘s failure to timely file a motion for new trial, his only avenuе after Tibbs for review of the weight of the evidence. This court held that the effect of Tibbs was to render defense counsel‘s obligation to timely file a motion for new trial substаntially analogous to his obligation to file a notice of appeal. Therefore, his failure to do so should constitute ineffective assistance of counsel in violation of defendant‘s constitutional rights. The court proceeded to revеrse Robinson‘s conviction “in the interest of justice” and grant a new trial. Crenshaw relies on Robinson to argue that his conviction should be similarly reversed. We disagree.
In reversing Robinson‘s conviction in the interest of justice, the court relied heavily on “the unique situation” presented in that case, which arose when the trial court improperly extended the time in which to file a motion for new trial and then granted it. That action was revеrsed by this court in State v. Robinson, 417 So. 2d 760 (Fla. 1st DCA 1982) (Robinson I), on the ground that the motion was untimely filed. Therefore, the Robinson II court knew without bеnefit of further proceedings in the trial court that, but for counsel‘s error, the motion wоuld have been granted. Consequently, it determined to circumvent what it termed the “typical” post-conviction remedy to reverse and grant a new trial “in the interest of justicе.” Robinson at 477.
It is apparent, therefore, that in the absence of these special сircumstances, Robinson‘s remedy would have been a motion for post-convictiоn relief. We do not have the benefit of the information available to the Robinson II court in this case and therefore find it controlled by State v. Barber, 301 So. 2d 7 (Fla. 1974). Barber held thаt, unless the sufficiency of the evidence is first presented to the trial court by way of mоtion, it is not reviewable on direct appeal and that it was unnecessary to consider whether counsel‘s failure to make such a motion to preserve the right to appellate review of the evidence was covered by the “interests of justice” rule, since ”
We therefore affirm Crenshaw‘s conviction without prejudice to whatever relief, including a motion pursuant to
NIMMONS and WENTWORTH, JJ., concur.