Tibbs v. State

This case brings us the responsibility to delineate the occasions for retrial and discharge, respectively, of criminal defendants whose convictions have been reversed by Florida appellate courts. It arises from the decision of the Second District Court of Appeal in State v. Tibbs, 370 So.2d 386 (Fla.2d DCA 1979).

I

In Tibbs v. State, 337 So.2d 788 (Fla.1976), we reversed the' petitioner Delbert Tibbs’ original conviction for rape and for first-degree murder, and we remanded for a new trial. On remand, the trial court granted Tibbs’ motion to dismiss the indictment against him on the ground that retrial would violate the double jeopardy clause of the fifth amendment to the United States Constitution. The trial court based its dismissal on two intervening decisions of the United States Supreme Court — Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Burks had held that the double jeopardy clause prohibits retrial where an appellate court reverses a conviction on the ground that the evidence is insufficient, and Greene applied that newly-articulated constitutional principle to the states’ judicial systems.

On appeal of the order directing Tibbs’ discharge from prosecution, the Second District Court of Appeal reversed. After analyzing our opinion reversing Tibbs’ convictions, the district court concluded that the principles enunciated in Burks and Greene would not bar Tibbs’ retrial since our reversal was based on the weight, rather than the legal insufficiency, of the evidence. The district court based its decision on a long line of Florida cases ostensibly standing for the proposition that an appellate court can reverse a conviction when the evidence is technically sufficient but its weight so tenuous as to require a new trial in the interests of justice.

One day after the Second District’s action, we decided McArthur v. Nourse, 369 So.2d 578 (Fla.1979). As in the present case, McArthur’s original conviction had been reversed and remanded for a new trial. After analyzing the earlier opinion, we concluded that our reversal had been based on the insufficiency of the evidence, so that Burks and Greene operated to preclude McArthur’s retrial. We expressly left open the double jeopardy implications of appellate reversals based on evidentiary weight, as opposed to sufficiency.

Tibbs then filed a petition for rehearing in the district court alleging that McArthur should be applied in his case to bar further prosecution. The Second District denied rehearing, emphasizing once again its belief that Tibbs’ reversal had been based on the weight of the evidence rather than its legal insufficiency. After this denial, Tibbs brought his case to us for review.

We are asked by Tibbs to rule that our reversal of his original convictions was based on evidentiary insufficiency, not evi-dentiary weight. Beyond simply examining the foundation for our prior opinion as we did in McArthur, we perceive the need to explain the distinction between an appellate reversal based on evidentiary weight and one based on evidentiary insufficiency, and to determine whether that distinction, if one really exists, shall remain viable in Florida.

II

At the outset, we note that the distinction between an appellate reversal based on evidentiary weight and one based on evi-dentiary sufficiency was never of any consequence until Burks. In that case the Supreme Court ruled that the double jeopardy clause of the fifth amendment precluded retrial because an appellate reversal for insufficient evidence is essentially an acquittal. If a trial court holds the evidence insufficient, a judgment of acquittal will be entered and the defendant cannot be retried. If should make no difference, the Court reasoned, that the appellate court rather than the trial court determined the evidence to be insufficient. In either situation, the government has failed to prove its case.

The Court was careful to distinguish reversals for procedural errors in a trial, where double jeopardy does not bar retrial. In such cases, a reversal does not indicate that the government’s case has failed, but simply that the judicial process leading to conviction was defective in some critical way. Retrial is appropriate since “the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.”

After Burks, the double jeopardy implications of two categories of appellate reversal — reversals for insufficient evidence and reversals for trial error — are relatively clear. The district court, however, distinguished Burks by placing Tibbs’ reversal in a third category: appellate reversals where the evidence is technically sufficient but its weight is so tenuous or insubstantial that a new trial is ordered in the interests of justice. While this third category of appellate reversals is often identified in Florida cases, both this Court in McArthur and the United States Supreme Court in Greene declined to rule on its double jeopardy implications. Without any guidance from either of us, the district court endeavored as best it could to find a place for the weight-sufficiency distinction in Florida’s jurisprudence. It is no reflection on that court that we now take a somewhat different view of the matter.

Ill

The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed. 1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n.10, 98 S.Ct. 2141, 2150 n.10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The “weight of the evidence” is the “balance or preponderance of evidence.” Black’s Law Dictionary 1429 (5th ed. 1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla.2d DCA 1959).

As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.

IV

The district court in this case reviewed a number of Florida appellate decisions reversing convictions on the alleged basis of evidentiary weight. Although the court’s analysis is plausible, we prefer to view these ambiguous decisions as reversals which were based on sufficiency; that is, as cases in which the state failed to prove the defendant’s guilt beyond a reasonable doubt. See Greene v. Massey, 437 U.S. 19, 25, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978).

The first decision cited by the district court was Williams v. State, 58 Fla. 138, 50 So. 749 (1909). In that case, the court stated: “After carefully weighing the evidence, we are irresistibly impelled to the conclusion that there was not sufficient evidence adduced to warrant the [guilty] verdict of the jury ....” 58 Fla. at 151-52, 50 So. at 754. Although this language is imprecise, a careful reading of the opinion seems to indicate that reversal was based on the state’s failure to place the defendants at the scene of the crime or to prove that they fired the fatal shots.

McNeil v. State, 104 Fla. 360, 139 So. 791 (1932), and Woodward v. State, 113 Fla. 301, 151 So. 509 (1933), are similar to Williams. In McNeil this Court reversed because “the evidence of identity of the accused as being the guilty party [was] not satisfactory to the appellate court .... ” 104 Fla. at 361, 139 So. at 792. The state, it appears, had failed to introduce substantial competent evidence to support its assertion that the defendant was present at the scene of the robbery. Since every material element of the offense was not proven, the evidence was insufficient to support a conviction. See Gaetano v. State, 273 So.2d 84 (Fla.4th DCA 1973); Parnell v. State, 218 So.2d 535 (Fla.3d DCA 1969).

In Woodward the Court granted a new trial “in view of the uncertainties appearing in the evidence, and the strong doubt which the evidence raises as to the defendants’ guilt....” 113 Fla. at 302, 151 So. at 509. Again, a close reading of the case leads us to think that Woodward’s guilt was not established beyond and to the exclusion of every reasonable doubt.

The district court also relied upon Skiff v. State, 107 Fla. 90, 144 So. 323 (1932), and Fuller v. State, 92 Fla. 873, 110 So. 528 (1926). In Skiff, the Court reversed a rape conviction because the requisite evidence of the victim’s character was unconvincing, explaining that “[t]he previous chaste character of the alleged victim is a material fact to be proved [by the state].” 107 Fla. at 91, 144 So. at 323. Here again, the reversal seemed to be predicated on the state’s failure to prove every element of the crime. Likewise in Fuller, the Court framed the issue presented by the principal contention on writ of error as “the sufficiency of the evidence to establish the identity of the defendant as the perpetrator of this homicide.” 92 Fla. at 874, 110 So. at 528. See also Ming v. State, 89 Fla. 280, 103 So. 618 (1925).

The district court also relied on Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944), where the Court granted “a new trial because of the inconclusiveness of the testimony offered to establish the essential facts necessary to constitute the crime.... ” Id. at 737, 19 So.2d at 110. Like the other “weight” cases which the district court considered, it is probable that Lowe in fact dealt with the state’s failure to prove a material fact, which goes to the sufficiency of the evidence.

Our hindsight analysis of the foregoing cases does not mean that all Florida appellate decisions can be reconciled, or that none explicitly relied on evidentiary weight as the sole basis for reversal. Two cases in 1970, Sosa v. Maxwell, 234 So.2d 690 (Fla. 2d DCA 1970), and Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), recognized that evidentiary weight could serve as a basis for appellate reversal.

Sosa v. Maxwell was preceded by Sosa v. State, 215 So.2d 736 (Fla.1968), where we had reversed the defendants’ convictions and remanded for a new trial because “evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree .... ” Id. at 737. In Sosa v. Maxwell, the district court denied a writ of prohibition to bar retrial and characterized our earlier reversal as going to the weight, not sufficiency, of the evidence. We later denied certiorari review without opinion. Sosa v. Maxwell, 240 So.2d 640 (Fla.1970). Our denial of certiorari, of course, was not an adjudication on the merits although it made the district court’s Sosa decision the “law of the case.” Our original opinion persuasively suggests, however, that the conviction actually was reversed because the state failed to carry its burden of proof — that is, the reversal was based on the insufficiency of the evidence. The district court, it now seems, simply interpreted our decision wrongly.

In Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), the district court reversed a conviction for rape. Although there was some evidence to support each element of the offense, the court concluded that the record as a whole disclosed such a possibility of error that a new trial was required. The court stated: “[Jjudges have historically granted new trials in the interest of justice where the record, though technically sufficient, raises so much doubt that the conviction cannot in conscience be upheld.” Id. at 290 (footnote omitted). On appeal we unanimously reversed. State v. Smith, 249 So.2d 16 (Fla.1971). Describing the district court’s opinion as “novel,” we held:

A twelve-man jury evaluated the evidence, including the credibility of the witnesses, presented in this case and found respondent guilty of the offenses charged. On appeal, the District Court determined that the evidence supported the conviction and the trial was free of error. Once that determination was made, the duty of the District Court was to affirm the conviction.

Id. at 18. We believe this approach is the correct one, and we today reaffirm it as a guiding principle of appellate review.

Y

As the above analysis indicates, the district court’s third category of appellate reversals — where the evidence is technically sufficient but its weight is so tenuous or insubstantial as to require a new trial in the interests of justice — has a questionable historical foundation. The cases relied on by the district court, though confusing and ambiguous in language, can each be seen as involving reversals based on the insufficiency of the evidence. In any event, the formulation in State v. Smith suggests that this third category of appellate reversals, if ever valid in Florida, should now be eliminated from Florida law. Henceforth, no appellate court should reverse a conviction or judgment on the ground that the weight of the evidence is tenuous or insubstantial. Cases now pending on appeal in which a court has characterized the reversal as based on evidentiary weight should be reconsidered in light of our decision today, and under the doctrine of Burks and Greene any retrial of those cases may or may not be barred on the basis of former jeopardy.

Considerations of policy support, if not dictate, this result. Elimination of the third category of reversal accords Florida appellate courts their proper role in examining the sufficiency of the evidence, while leaving questions of weight for resolution only before the trier of fact. Eliminating reversals for evidentiary weight will avoid disparate appellate results, or alternately our having to review appellate reversals based on evidentiary shortcomings to determine whether they were based on sufficiency or on weight. Finally, it will eliminate any temptation appellate tribunals might have to direct a retrial merely by styling reversals as based on “weight” when in fact there is a lack of competent substantial evidence to support the verdict or judgment and the double jeopardy clause should operate to bar retrial.

VI

One further note is in order regarding the scope of our decision today. Many of the “weight” cases cited by the district court included a statement that a new trial was being ordered “in the interest of justice.” By eliminating evidentiary weight as a ground for appellate reversal, we do not mean to imply that an appellate court cannot reverse a judgment or conviction “in the interest of justice.” The latter has long been, and still remains, a viable and independent ground for appellate reversal. Rule 9.140(f) of the Florida Rules of Appellate Procedure (1977) provides the relevant standards:

In the interest of justice, the court may grant any relief to which any party is entitled. In capital cases, the court shall review the evidence to determine if the interest of justice requires a new trial, whether or not insufficiency of the evidence is an issue presented for review.

This rule, or one of its predecessors, has often been used by appellate courts to correct fundamental injustices, unrelated to evidentiary shortcomings, which occurred at trial. Retrial in these circumstances is neither foreclosed, nor compelled, by double jeopardy principles. Each situation is unique.

With respect to the special mention of capital cases in the second sentence of the rule, we take that sentence to mean no more than that an additional review requirement is imposed when insufficiency of the evidence is not specifically raised on appeal—namely, that the reviewing court shall consider sufficiency anyhow and, if warranted, reverse the conviction. The consequence of that action would be to bar retrial under the double jeopardy clause.

VII

The application of these principles to our original Tibbs decision does not offer an easy solution to the issue Tibbs presents, for a careful analysis would seem to indicate, candidly, that the opinion was—like the district court’s decision in Smith—one of those rare instances in which reversal was based on evidentiary weight.

Tibbs’ conviction rested primarily on the uncorroborated testimony of the rape victim, Cynthia Nadeau. Although this testimony alone was legally sufficient to support Tibbs’ conviction under Florida law, Thomas v. State, 167 So.2d 309 (Fla.1964), we reversed his conviction due to a number of “infirmities in the evidence establishing Tibbs as the perpetrator” of the crime. Among these infirmities were several aspects of Nadeau’s testimony which cast serious doubt on her believability. In effect, we reweighed the evidence supporting Tibbs’ conviction and remanded for a new trial. Judged in light of today’s decision, this action was clearly improper. Given the dilemma that error has created, we appear to have several alternatives.

First, we could simply apply the principles enunciated in today’s decision, vacate our previous reversal, and affirm Tibbs’ conviction. This alternative would prejudice Tibbs for our improper reweighing of the evidence, and for that reason it is not terribly attractive.

Second, we could discharge Tibbs on the ground that he is entitled to this relief from our earlier decision, since we there indicated our serious concern “that Tibbs had nothing to do with these crimes.” Tibbs v. State, 337 So.2d 788, 791 (Fla.1976). Only by stretching the point, however, could we possibly use an “insufficiency” analysis to characterize our previous reversal of Tibbs’ convictions.

A more sensible, third alternative, we believe, is to face squarely the double jeopardy implications of a pre-Burks, appellate reversal based on evidentiary weight. We recognize, of course, that this alternative will merely resolve Tibbs’ particular situation, and will have little precedential effect on Florida’s law after today’s decision. Nonetheless, the interests of justice seem to require that we choose between a retroactive and artificial characterization of our earlier decision (an action we expressly declined to undertake in Greene v. Massey, 384 So.2d 24 (Fla.1980)), and a retroactive application of double jeopardy principles to an appellate reversal improperly entered.

Despite the broader focus which Justice Sundberg would have us adopt to resolve our dilemma, the fact remains that we cannot fairly conclude from our original opinion that Tibbs’ convictions were reversed on the grounds of evidentiary insufficiency. If they were not, then generalized double jeopardy concepts are of no value here, for the United States Supreme Court has now made relatively clear that only those appellate reversals tantamount to an acquittal for insufficient evidence prohibit retrial under Burks. United States v. DiFrancesco, - U.S. -, 101 S.Ct. 426, 433-37, 66 L.Ed.2d 328 (U.S.1980). Other appellate reversals, including those where sufficient evidence was adduced but a conviction was nonetheless vacated, apparently do not implicate double jeopardy principles.

For these reasons the decision of the Second District Court of Appeal in State v. Tibbs, 370 So.2d 386 (Fla. 2d DCA 1979), is affirmed.

It is so ordered.

ADKINS, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs in part and dissents in part with an opinion.

ENGLAND, J., concurs in part and dissents in part with an opinion.

BOYD, J., dissents with an opinion.

. McArthur v. State, 351 So.2d 972 (Fla.1977).

. McArthur v. Nourse, 369 So.2d 578, 581 n.11 (Fla.1979).

. State v. Tibbs, 370 So.2d 386, 388-89 (Fla.2d DCA 1979).

. See Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904).

. The Court reasoned that to hold otherwise would create a “purely arbitrary distinction” between a defendant who received the benefit of a correct lower court decision and one who did not. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978).

. Id. at 15, 98 S.Ct. at 2149.

. McArthur v. Nourse, 369 So.2d 578, 581 n.11 (Fla.1979).

. Greene v. Massey, 437 U.S. 19, 26 n.10, 98 S.Ct. 2151, 2155 n.10, 57 L.Ed.2d 15 (1978).

. At the trial level, the weight-sufficiency distinction is apparent in our Rules of Criminal Procedure. We noted in McArthur v. Nourse, 369 So.2d 578 (Fla.1979) that:

[a] critical distinction has existed at least since 1967, when rules 3.380 (formerly 3.660) and 3.600 of the Florida Rules of Criminal Procedure were adopted. Rule 3.380(a) provides that a motion for judgment of acquittal should be granted if, at the close of the evidence, “the court is of the opinion that the evidence is insufficient to warrant a conviction.” In contrast, rule 3.600(a)(2) provides that a motion for new trial shall be granted if the jury verdict is “contrary to law or the weight of the evidence.”

Id. at 580 (footnote omitted) (emphases added). Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror. It follows that a finding by the trial judge that the verdict is against the weight of the evidence is not a finding that the evidence is legally insufficient. See Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1059, 59 L.Ed.2d 97 (1979).

. See, e. g., Chaudoin v. State, 362 So.2d 398 (Fla.2d DCA 1978) (weight and credibility solely within province of jury; appellate court’s only function to determine sufficiency as a matter of law); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976), cert. denied, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064 (1977) (conflicts in evidence and questions about witness’ credibility will not justify reversal when evidence is legally sufficient to support conviction); Wetherington v. State, 263 So.2d 294 (Fla.3d DCA 1972).

. Spinkellink v. State, 313 So.2d 666 (Fla.1975); Wooten v. State, 361 So.2d 167 (Fla.3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla.3d DCA 1976).

. One problem, of course, is whether an appellate court actually “reweighs” the evidence in reviewing a trial court’s grant or denial of a motion for new trial based on the ground that the verdict is contrary to the weight of the evidence. See note 9 supra. Although Florida case law offers no clear answer, see Mancini v. State, 273 So.2d 371 (Fla. 1973), this case does not require us to address this problem, and we leave its resolution for another day.

. Greene v. Massey, 384 So.2d 24 (Fla.1980).

. See, e. g., Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977); In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976); Kohn v. State, 289 So.2d 48 (Fla. 3d DCA 1974); Cleveland v. State, 287 So.2d 347 (Fla. 3d DCA 1973). Other cases have granted new trials “in the interests of justice” without explicitly citing the rule. See, e. g., Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978); Ferber v. State, 353 So.2d 1256 (Fla. 2d DCA 1978); McClain v. State, 353 So.2d 1215 (Fla. 3d DCA 1977).