Opinion
No. J-331.
March 26, 1968.
Appeal from the Circuit Court for Leon County, Ben C. Willis, J.
Richard W. Ervin, III, Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
The appellant, Kimble, seeks review of his conviction, after jury trial, for the offense of assaulting a police officer with intent to do violence. As a defense in the trial court Kimble attempted to establish that the police officer did not inform him that he was being arrested and that excessive force was used by the police officer in making the arrest before he, Kimble, resisted the arrest by violence. We note from the transcript of testimony that there was conflict in the testimony of the witnesses in this regard which was up to the jury to weigh and resolve.
The sole point argued as error on this appeal deals with the sufficiency of the evidence to sustain the verdict. The record on appeal reflects that the trial judge was not given the opportunity to rule on this alleged error by a motion for new trial. Therefore, we are precluded on this appeal from considering error based on the insufficiency of the evidence. Gilbert v. State, 148 Fla. 293, 4 So.2d 330 (1941); Smith v. State, 194 So.2d 310 (Fla.App.1st, 1967). Hence, the conviction and judgment appealed is affirmed.
WIGGINTON, C.J., and JOHNSON and SPECTOR, JJ., concur.