487 So. 2d 408 - Feagans v. State

How this case has been cited

Cited by 5 later decisions — most recently January 2001

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Bennett H. Brummer, Public Defender, and Lawrence M. Malman, Sp. Asst. Public Defender, for appellant.

¶2Jim Smith, Atty. Gen., and Debora J. Turner, Asst. Atty. Gen., for appellee.

¶3Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.

¶4PER CURIAM.

¶5Appellant was adjudged guilty and sentenced to 17 years imprisonment for the lesser included offense of second degree murder, after a jury trial on a charge of first degree murder.

¶6It is appellant's first contention on appeal that the trial court abused its discretion *409 by denying appellant's motion to continue the trial. We find this contention to be without merit. The granting or denial of a motion for continuance is within the trial court's judicial discretion and will not be disturbed by an appellate court absent a palpable abuse of discretion. Lusk v. State, 446 So.2d 1038, 1040-41 (Fla.), and cases cited therein, cert. denied, ___ U.S. ___, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

¶7Appellant's next contention is that the trial court erred in denying his motion for judgment of acquittal. We find the motion was properly denied since, under Florida law, a motion for judgment of acquittal should not be granted unless there is no legally sufficient evidence upon which the jury could find the defendant guilty. T.J.T. v. State, 460 So.2d 508 (Fla. 3d DCA 1984); Greger v. State, 458 So.2d 858 (Fla. 3d DCA 1984); Fletcher v. State, 428 So.2d 667 (Fla. 1st DCA 1982), review denied, 430 So.2d 452 (Fla. 1983); Knight v. State, 392 So.2d 337 (Fla. 3d DCA), review denied, 399 So.2d 1143 (Fla. 1981).

¶8As to appellant's last point, we hold that the trial court did not abuse its broad discretion in denying appellant's motion for a new trial on the basis of the recantation of testimony by a prosecution witness. Since the court determined the recantation testimony was not credible, it was the court's duty to deny the motion for a new trial. Henderson v. State, 135 Fla. 548, 185 So. 625 (1938); see Mollica v. State, 374 So.2d 1022, 1025 (Fla. 2d DCA 1979); Borgess v. State, 455 So.2d 488 (Fla. 1st DCA 1984).

¶9No reversible error having been demonstrated, the judgment and sentence appealed are affirmed.

¶10Affirmed.