Opinion
No. 4D04-1667.
March 2, 2005.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Royce Agner, Senior Judge, and Susan Lebow, Judge; L.T. Case No. 02-17813 CF10A.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
The primary issue in this case is whether a successor judge can, as in this case, deny a motion for a new trial based upon the verdict being against the weight of the evidence or a determination of the credibility of witnesses. We hold that the successor judge, due to the unavailability of the original judge, should have granted appellant's motion for a new trial based on Sanford v. State, 687 So.2d 315 (Fla. 3d DCA), rev. denied, 697 So.2d 512 (Fla. 1997), and State v. May, 703 So.2d 1097 (Fla. 2d DCA 1997).
Because we are reversing for a new trial, we decline to address the two additional issues raised by appellant.
REVERSED AND REMANDED FOR A NEW TRIAL.
FARMER, C.J., and TAYLOR, J., concur.