The trial is over. Unfortunately, the jury found guilt beyond a reasonable doubt. What’s next? Some attorneys would say sentencing and they would be half correct. But, if the criminal defense attorney knows what they are doing and fully understands criminal and appellate procedure, then the next step before sentencing is to file a motion for new trial. Fla. R. Crim. P. 3.580, 3.590,[i] and 3.600 outline the rules for making a motion for new trial in a criminal case.
Like any human endeavor, there will be mistakes and some legal issues may not have been properly objected to, raised, or otherwise preserved for appellate review. A motion for new trial may preserve such issues. In Carmichael v. State, 715 So.2d 247, 248 (Fla. 1998), the Florida Supreme Court reiterated, “In Steinhorst v. State, 412 So.2d 332 (Fla.1982), we said that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Id. The issue may be raised in a motion for new trial for the trial court to consider (and, thus, to preserve the issue for appeal).
Florida Law has long been that only a fundamental error[ii] may be raised on appeal if the issue was not contemporaneously objected to so that the trial court had an opportunity to address the matter. See §924.051(2) and (3), Fla. Stat.; Fla. R. App. P. 9.140(b)(1)(F) and (G); and J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) (holding “[o]nly when error is fundamental can the error be raised on appeal in the absence of a contemporaneous objection”) See also Louidor v. State, 162 So.3d 305 (Fla. 3d DCA 2015), rehearing denied (at trial inadmissible DVD admitted via stipulation waived the fundamental error argument). The motion for new trial allows the attorney to correct this problem and place the issue within its usual standard of review (like “abuse of discretion” or “harmless error” … etc.)
Attorneys are people and people make mistakes. None of us is perfect. While it may be unthinkable, an attorney may forget to make an objection, raise an issue in the heat of the trial, or think about a matter privately to themselves after the day has concluded and say later, “I should have objected to that comment from the witness today” or something to that effect. While the case law usually requires a contemporaneous objection from the opposing party and clear ruling from the court, the law recognizes that the attorney may miss something like an objection, fail to raise an important issue, or advance some prescient argument, and allows for the parties to raise those issues in a motion for new trial.[iii] In turn, this allows the attorney to properly preserve a missed issue for appellate review by addressing the issue with the lower court. Again, if the issue is not properly raised at the lower court and ruled upon, the only way that issue can be raised on appeal is through the extremely difficult standard of “fundamental review.” While not impossible, “fundamental review” is an extremely difficult appellate review standard.
For whatever reason, however, there are quite a few criminal defense attorneys that fail to take advantage of the motion for new trial. Maybe it’s pride, a big ego, arrogance, ignorance, cowardice, or what-have-you, these attorneys do their clients a huge disservice by not filing a motion for new trial. Once a client has been convicted and sentenced, the next stage is typically to continue to the direct appeal and beyond (like post-conviction matters and federal habeas). There can be no strategic reason for not making the proper objections and preserving the record if the goal is to provide “effective assistance” as intended under the Sixth Amendment. Thus, there can be no strategic reason for not filing a motion for new trial when the client was convicted at trial.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-022 Motion for New Trial
[i] Fla. R. Crim. P. 3.590, 1980 Amendment … “It also allows the defendant in a criminal case the opportunity to amend the motion.”
[ii] “This is the rule which we [the Florida Supreme Court] have adopted in ascertaining whether we will view a particular error as fundamental. In Hamilton v. State, Fla., 88 So.2d 606, we specifically stated that in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla. 1960)
[iii] The rules for motions for new trial in criminal court require the motion to be filed in 10 days, but a timely filed motion can be amended at any time before it is heard. So, as a practical matter, a motion should be filed immediately after a conviction and then amended before it is heard. This will maximize the attorney’s ability to properly preserve issues for appeal. See Francis v. State, 413 So.2d 1175 (Fla. 1982).