
    STATE of Florida, Appellant, v. Helene POWELL, Appellee.
    No. 83-1339.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 19, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Dennis L. Salvagio, Orlando, for appel-lee.
   DAUKSCH, Judge.

This is an appeal from an order granting relief under Florida Rule of Criminal Procedure 3.850.

Appellee was tried and found guilty of first degree murder. During trial she properly moved for a judgment of acquittal based upon the alleged insufficiency of the evidence. She moved for a new trial after she was found guilty. Both of these were denied, so she appealed the denials. She lost the appeal. See 414 So.2d 1095.

After losing her appeal she filed a motion to vacate the judgment under Rule 3.850 and said she would not have been convicted if the original trial judge, who was not the one hearing the motion to vacate, had not been confused about the law relating to her case. The judge hearing the motion took testimony, including that of the trial judge, considered other evidence and ordered a new trial. He said the trial judge

was under the impression that the decision in Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981), prevented him from entering a judgment of acquittal even though he obviously felt that the weight of the evidence dictated such an order. This court is of the opinion that Tibbs v. State, 397 So.2d 1120 (1981), sets forth clearly that the trial court has authority to determine the weight of the evidence while the question of sufficiency of the evidence is an appropriate conclusion of the appellate tribunal.

The judge who ruled on the motion to vacate was in error because he had no jurisdiction to grant a new trial — neither did the trial judge. That jurisdiction was lost after the appeal was taken and never regained. He was also in error when he presumed to review a decision of this court which had passed on the sufficiency of the evidence. As to the ability of judges, trial or appellate, to pass on the weight or sufficiency of evidence see Tibbs v. State, 397 So.2d 1120 (1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Finally, he was in error when he presumed to rule upon, in an appellate fashion, the prior ruling of another circuit judge. Cf. Groover v. Walker, 88 So.2d 312 (Fla.1956); Marine Midland Bank Central v. Cote, 384 So.2d 658 (Fla. 5th DCA 1980).

The order appealed is reversed.

REVERSED.

COWART, J., concurs specially with opinion.

SHARP, J., dissents without opinion.

COWART, Judge,

concurring specially.

I completely concur in the court’s decision. However, I feel it necessary to point out that the trial judge below misconstrues Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). On a motion for a judgment of acquittal during a jury trial the trial judge considers only the legal sufficiency of the evidence; that is, whether there is some competent evidence to support every ultimate fact necessary to establish every essential constituent element of the offense. This includes direct evidence and circumstantial evidence from which the jury may reasonably infer an essential ultimate fact. The trial judge does not weigh the evidence. See Davis v. State, 425 So.2d 654 (Fla. 5th DCA 1983); Cunningham v. State, 385 So.2d 721, 722 (Fla. 3d DCA 1980). See also Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984). Under Florida Rule of Criminal Procedure 3.600(a)(2) the trial judge does have some discretion to consider the weight of the evidence in ruling on a motion for a new trial. However, the trial court in this case exercised that discretion and denied the motion for a new trial. 
      
      . The fact that a trial court states on the record that it would have acquitted the defendant if it had been sitting as a juror is of no consequence in a motion for judgment of acquittal. See Rodriguez v. State, 436 So.2d 219 (Fla. 3d DCA 1983).
     