IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RUBEN DANYON MCCLOUD, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D12-5320
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 9, 2014.
An appeal from the Circuit Court for Duval County.
Mallory D. Cooper, Judge.
James T. Miller, Jacksonville, and Deana K. Marshall, Riverview, for Appellant.
Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General,
and Wesley Cross Paxson, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant Ruben McCloud challenges his conviction and sentence on two
counts of attempted second-degree murder and one count of shooting or throwing a
deadly missile. We find merit to one of his claims and reverse for a new trial.
We agree with Appellant that after the motion to disqualify the trial judge
was granted (see Fla. R. Jud. Admin. 2.330), the successor judge who did not
conduct the trial could not competently rule on Appellant’s motion for a new trial
because it required weighing the credibility of witnesses and competing witness
testimony to resolve conflicts in the evidence. See Colson v. State, 75 So. 3d 306,
307 (Fla. 1st DCA 2011). “Defendants have the right to have the trial judge
evaluate and weigh the evidence independently of the jury’s findings to determine
whether the jury verdict was contrary to the weight of the evidence.” Kelley v.
State, 16 So. 3d 196, 197 (Fla. 1st DCA 2009) (internal quotation marks and
citation omitted).
In this case, the State’s evidence identifying Appellant as the shooter was
based solely on the identification made by the two victims. But Appellant put on an
alibi defense with multiple witnesses claiming that he was at home miles away at
the time of the shooting and could not have been the shooter. Appellant’s
conviction depended entirely upon the jury’s resolution of conflicts in the evidence
and the relative credibility of the witnesses. Under these circumstances, a successor
judge, who was not present at trial, could not competently assess the weight of the
evidence as required to resolve Appellant’s motion for new trial. Accordingly, we
reverse and remand for a new trial.
REVERSED and REMANDED.
ROBERTS, WETHERELL, and OSTERHAUS, JJ., CONCUR.
2