
    STATE of Florida, Appellant/Cross-Appellee, v. Vivian HARRIS, Appellee/Cross-Appellant.
    No. 94-1486.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1995.
    Rehearing Denied Sept. 21, 1995.
    
      Robert A. Butterworth, Atty. Gen., Tallahassee, and Kristen L. Davenport, Asst. Atty. Gen., Daytona Beach, for appel-lani/eross-appellee.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellee/cross-appellant.
   COBB, Judge.

The state appeals the action of the trial court in overturning the jury verdict of premeditated first degree murder and adjudicating the defendant below, Vivian Harris, guilty of second degree murder. The state contends the trial judge improperly reweighed the evidence. We agree.

There was testimony adduced at trial that, after some type of altercation between Harris and her son, Michael, in the family home, he left and went to a neighbor’s home for approximately ten minutes. During his absence, Harris procured a .38 pistol she kept hidden in the home and went outside. As Michael, who was unarmed, approached her upon his return, she assumed a “two-handed shooter’s stance” and fired some five or six shots in his direction. One struck him directly in the nose and exited the back of his head, killing him instantly. Harris then went back in the house, emptied the shell casings in the trash can, and placed the pistol between two mattresses. At trial she contended the shooting was accidental, and the jury rejected that defense.

After the jury’s verdict, the trial court set aside the jury verdict, and, citing to the Florida Supreme Court cases of Smith v. Brown, 525 So.2d 868 (Fla.1988) and Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), adjudged Harris guilty of the lesser included offense of second degree murder.

In Smith, a civil case, the Florida Supreme Court reiterated the test set forth in Cloud v. Fallis, 110 So.2d 669 (Fla.1959) in regard to the granting of a new trial by the trial judge based upon the latter’s determination that the verdict was against the manifest weight of the evidence. That test turns on a finding, express or implied, that the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. We find nothing in the instant record to sustain either finding. The manifest weight of the evidence in the instant case does support the jury verdict. Contrary to the directive in Laskey v. Smith, 239 So.2d 13 (Fla.1970), the trial judge here seemingly has acted as an additional juror.

The two appearances of Tibbs before the Florida Supreme Court add little to our analysis herein. Tibbs was convicted and sentenced to death primarily upon the uncorroborated testimony of a rape victim, whose testimony was impeached in several respects and who was admittedly under the influence of marijuana at the time of the incident. Unlike the Tibbs case, the essential facts in the instant case are corroborated by several independent eyewitnesses and are not in serious dispute.

We recognize that when the evidence does not sustain the verdict for the offense charged but does sustain a finding of guilty on a necessarily included offense, a trial judge should adjudge the defendant guilty of that necessarily included offense. Goddard v. State, 458 So.2d 230 (Fla.1984); Fla.R.Crim.P. 3.620. On the other hand, when the evidence is legally sufficient to support a jury verdict, as it was in this case, then the question arises as to the applicability of Florida Rule of Criminal Procedure 3.600(a), which provides that the trial judge shall grant a new trial (not reduce the verdict finding) if the verdict is contrary to law or the weight of the evidence. The Rule allows the trial judge to act as a safety valve when the evidence is technically sufficient to prove the criminal charge but the weight of the evidence simply does not appear to support that verdict. See Tibbs; State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994).

Despite the discretion afforded a trial judge in determining a motion for new trial, that discretion is not without limits and is subject to reversal on appeal. See State v. Hamilton, 574 So.2d 124 (Fla.1991); Jones v. Stevenson, 598 So.2d 219 (Fla. 5th DCA 1992). Based upon the record before us, we cannot see that the instant case is one which warrants a new trial based on the weight of the evidence. This is not a circumstantial evidence ease or even one in which the eyewitnesses were subject to serious impeachment or credibility challenges. Here, there was independent and unimpeaehed testimony that clearly supports the jury’s conclusion that Harris deliberately sought out and gunned down the victim, whatever previous provocation may have motivated her. There was more than a prima facie case of guilt established by the evidence. Cf. Proko v. State, 566 So.2d 918 (Fla. 5th DCA 1990). We find no merit in the various points raised by the appellee’s cross-appeal.

Accordingly we reverse and remand for entry of judgment consistent with the jury verdict of first degree murder.

REVERSED AND REMANDED.

THOMPSON, J., concurs.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge,

dissenting.

I dissent because in my view the proper course for us to take is to remand for a new trial. The trial court found that the verdict of guilt of first degree premeditated murder was contrary to the weight of the evidence presented at trial. It stated that a reasonable hypothesis existed that the homicide, while unlawful, was committed without premeditation. In reducing the conviction to second degree murder, the trial court relied on Florida Rule of Criminal Procedure 3.620 which states:

When the offense is divided into degrees or necessarily includes lesser offenses and the court, on motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.

The evidence presented in this case was in conflict on the premeditation issue. Some witnesses testified that Harris was calm, took a two-handed shooter stance, and fired directly at the victim, her son. Other witnesses testified that Harris was frightened of her son who had threatened her physically and hit her before leaving their house, that she was trying to scare him away, and that she loved him and had no intent to kill him. There was also testimony that Harris did not know how to properly aim a gun, that she was firing with her eyes closed, and that bullets were shot upwards into the surrounding trees.

The test under rule 3.620 is whether there was sufficient evidence to sustain the verdict, not weight of the evidence. In this regard, the trial court erred in reducing the murder charge. However, Harris’ motion was one for a new trial and pursuant to rule 3.600(a)(2), the trial court may grant a new trial in a case in which it determines that the verdict is contrary to the weight of the evidence.

This determination falls within the exclusive province of the trial judge, and Harris has a fundamental right to obtain a ruling from it on this ground. Tibbs v. State, 397 So.2d 1120 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Smyly, 646 So.2d 238 (Fla. 4th DCA 1994). The first district said in Robinson v. State, 462 So.2d 471, 476-477 (Fla. 1st DCA 1984), rev. denied, 471 So.2d 44 (Fla.1985):

The Supreme Court has made it abundantly clear that the only avenue for judicial review of the weight of the evidence is by motion for new trial at the trial level. Thus, the rules of criminal procedure and the courts continue to recognize the critical need for some form of discretionary judicial review to serve as a safety valve in those cases where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict. Tibbs simply removes the appellate courts from playing any significant role in that process and places sole responsibility for that discretionary decision upon the trial judge.

In fulfilling its function under rule 3.600(a)(2), the trial court of necessity invades the province of the fact finder and acts as an additional juror with an absolute veto over the other six. See Smith v. Brown, 525 So.2d 868 (Fla.1988) (in maMng a decision whether to grant a new trial, the judge must necessarily consider credibility of the witnesses along with the weight of the evidence); Smyly (in assessing the verdict in light of the weight and credibility of the evidence under rule 3.600, the trial judge sits as a seventh juror with a veto over the unanimous verdict of the other six jurors); State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994) (the process of assessing whether the jury’s verdict is consistent with the weight of the evidence necessarily requires that the trial judge invade the fact-finding arena, that is, to act as an additional juror). As the court said in Tibbs:

Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of the witnesses so as to act, in effect, as an additional juror. It follows that a finding by the trial judge that the verdict is against the weight of the evidence is not a finding that the evidence is legally insufficient.

397 So.2d at 1123, n. 9.

In this case, it appears that the evidence was legally sufficient to support the verdict of first degree murder. However, it is clear that the trial judge in this ease found the verdict was “contrary to the weight of the evidence presented at trial.” He thus should have granted a new trial pursuant to rule 3.600(a)(2) rather than reducing the charge pursuant to rule 3.620.

As the fourth district did in Smyly, we should elect to treat the order appealed as one granting a motion for new trial, and affirm it. The standard for reviewing an order granting a new trial is the abuse of discretion standard, using the reasonableness test. I respectfully disagree with the majority opinion which appears to hold that because there is evidence in the record to support the jury verdict, a new trial order would constitute an abuse of discretion. Smith. 
      
      . The earlier case was Tibbs v. State, 337 So.2d 788 (Fla. 1976).
     
      
      . Smith v. Brown, 525 So.2d 868 (Fla.1988); State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994).
     