Carl David GEIBEL, a/k/a Glen Geibel, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
*1043 James Marion Moorman, Public Defender, and Susan Martin, Special Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Carl David Geibel appeals a judgment convicting him of armed robbery, arguing that the trial court erred in refusing to grant his motion for judgment of acquittal and motion for new trial. We affirm the trial court's decision to deny the motion for judgment of acquittal because there was competent, substantial evidence to allow the case to go to the jury. We reverse the judgment, however, because we cannot determine whether the trial court applied the proper standard in ruling on Mr. Geibel's motion for new trial. We remand for the trial court to reconsider the motion for new trial according to the appropriate standard and to enter an order accordingly.
On May 26, 2000, a woman was robbed at gunpoint while she sat in her car. The robber left no physical evidence, and the victim was the only eyewitness to the crime. Although the victim reported the crime immediately and gave police a description of the perpetrator, police were unable to locate a suspect in the immediate vicinity. In order to facilitate an investigation, the victim worked with law enforcement to make a composite sketch of the perpetrator.
On June 15, 2000, law enforcement prepared a photo pack and presented it to the victim to see whether she recognized the robber in the array of photos. She immediately chose Mr. Geibel's picture out of the photos. Based upon the victim's identification, Mr. Geibel was arrested and charged with armed robbery.
At trial, Mr. Geibel's counsel vigorously cross-examined the victim about the significant differences between the description of the perpetrator given by the victim at the time of the robbery and Mr. Geibel's actual physical appearance at the time of trial. For example, the eyewitness described the man who robbed her as in his mid-twenties, with long, dark brown, dirty hair, and light-colored eyes. The composite sketch drawn from the victim's description displayed a man with prominent dark, thick hair falling almost to the chin. In contrast, Mr. Geibel is in his mid-thirties and has brown eyes. The picture of him in the photo pack shows that he has a noticeable receding hairline with thin, short, light brown hair. A second photo of Mr. Geibel was submitted into evidence, which the State stipulated was taken two weeks before the robbery. In this photo, Mr. Geibel looks much the same as he did in the photo pack shown to the victim. Thus, there was no evidence that Mr. Geibel might have changed his appearance in the days following the robbery, nor did the victim believe the robber was wearing a wig or otherwise attempting to alter his appearance at the time of the incident. Despite these inconsistencies, the victim confirmed her identification of Mr. Geibel at trial, and the jury convicted Mr. Geibel of armed robbery.
*1044 After the verdict, Mr. Geibel filed a motion for new trial, arguing that the verdict was against the manifest weight of the evidence. See Fla. R.Crim. P. 3.600(b). Counsel for Mr. Geibel argued that eyewitness testimony was inherently unreliable, and given the discrepancies between the victim's initial description of the perpetrator and the actual physical appearance of Mr. Geibel, the jury could not reasonably have concluded, beyond a reasonable doubt, that Mr. Geibel was guilty of the crime. Counsel asked the trial court to sit as a "seventh juror" to reweigh the evidence and to "veto" the jury's verdict. In ruling on this motion, the trial judge stated:
As [the State] pointed out, [the victim] was examined very, very carefully and I, I don't find the legal basis. I mean, I appreciate [defense counsel's] argument, I understand why he feels the way he feels, I know why his client feels the way he feels, but I don't see that I have any legal basis to grant the new trial, so I'll deny the motion.
Mr. Geibel argues that the trial court's statement, "I don't find the legal basis," indicates that the trial judge was refusing to reweigh the evidence, and was instead applying a "sufficiency of the evidence" standard to the motion for new trial.
There is a distinction between the "sufficiency of the evidence" standard, used in determining whether a judgment of acquittal is appropriate, and the "weight of the evidence" standard used in evaluating a motion for new trial. Moore v. State,
Although appellate courts generally review a trial court's ruling on a motion for *1045 new trial based upon an abuse of discretion standard, a trial court's failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review. Appellate courts have thus reversed judgments when the trial court applied a sufficiency of the evidence standard to a motion for new trial based upon the manifest weight of the evidence. See Moore,
Because we cannot tell if the trial court applied the proper standard, we reverse the judgment and remand this case for the trial court to reconsider the motion. If the trial court concludes the verdict is against the manifest weight of the evidence presented, it should grant Mr. Geibel's motion for new trial. If the trial court concludes the verdict is not against the manifest weight of the evidence, it may again deny the motion and enter a new judgment and sentence accordingly.
Affirmed in part; reversed in part; and remanded.
BLUE, C.J., and SILBERMAN, J., Concur.
NOTES
Notes
[1] It is understandable that trial judges are uncomfortable when attorneys argue that they should serve as an "additional juror" or the "seventh juror" in a criminal case. In a civil case, it is well established that a trial judge may not sit as a "seventh juror with veto power" in determining a motion for judgment notwithstanding the verdict. See, e.g., Laskey v. Smith,