Tibbs v. State

• Citation: 397 So.2d 1120
• Decision Date: 09 April 1981
• Docket Number: No. 56918,56918
• Parties: Delbert Lee TIBBS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1120

397 So.2d 1120

Delbert Lee TIBBS, Petitioner, v. STATE of Florida, Respondent.

No. 56918.

Supreme Court of Florida.

April 9, 1981.

Rehearing Denied June 3, 1981.

Louis R. Beller, Miami Beach, and Jerry Paul, Durham, N. C., for petitioner.

Jim Smith, Atty. Gen., Eula Tuttle Mason and Charles Corces, Jr., Asst. Attys. Gen., Tampa, for respondent.

PER CURIAM.

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. ¹ 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. ²

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. ³ 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 evidentiary 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 evidentiary 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. ⁴ 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. ⁵

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." ⁶

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 ⁷ and the United States Supreme Court in Greene ⁸ 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.

III

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). ⁹

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. ¹⁰ 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. ¹¹ Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. ¹²

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 ...