State v. Silva

The State of Florida appeals the trial court’s ruling granting a “reserved” motion for judgment of acquittal after a jury verdict finding Marcos Silva guilty of burglary with assault or battery and battery.1 Our review of the record demonstrates that the State presented sufficient evidence to support the jury’s determination of guilt on the charge of burglary with assault or battery. We therefore reverse the order granting the motion for judgment of acquittal, and remand with instructions to reinstate the jury’s verdict on the burglary count. State v. Powell, 636 So.2d 138 (Fla. 1st DCA), rev. dismissed, 645 So.2d 454 (Fla. 1994). In light of the State’s concession at oral argument before this court, with which we entirely agree, we affirm the judgment of acquittal on the battery conviction as it cannot be sustained in conjunction with the burglary conviction. Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999). Because of the unfortunate views expressed by the trial judge in connection with this case, we direct the case be reassigned to another judge for sentencing.

Affirmed in part, reversed in part, and remanded with instructions.