The Florida Bar

Florida Bar Journal

Evidence Sufficiency and Fundamental Error in Criminal Cases

Featured Article

The Due Process Clause protects the accused against con­vic­tion except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”1 Given this, it may seem that any con­vic­tion based on insuffi­ci­ent evidence is a denial of due process.2 Yet, under current Florida law, the following hypothetical opinion is possible:

Defendant, a mildly retarded and illiterate immigrant who speaks no English, was convicted of first degree murder and sentenced to life. He claims the evidence was insufficient to prove the offense. We agree. Unfortunately, the issue was not preserved. We must affirm, without prejudice to Defendant’s right to seek post-conviction relief.

The author has never seen such an opinion, in Florida or elsewhere. Such an opinion would be possible under F.B. v. State, 852 So. 2d 226 (Fla. 2003), in which the Florida Supreme Court resolved a conflict in the district courts and held it was not fundamental error to convict a defendant of grand theft even though the state did not prove the value of the stolen property. The court also adopted a general rule for determining when unpreserved evidence sufficiency issues constitute fundamental error. The court said sufficiency issues are fundamental error in some circumstances but not others.

This article concludes: 1) The test the court adopted for fundamental error in F.B. is unclear; 2) whatever that test, the logic used to justify it is flawed; and 3) as long as Fla. R. Crim. P. 3.380(c) allows sufficiency issues to be initially raised within 10 days of the discharge of the jury, there is no reason to require such issues to be preserved. The only reason to require preservation is to give the state a chance to cure the evidence deficiency. But the state cannot cure a deficiency raised under Rule 3.380(c). Further, defense counsel’s failure to raise a meritorious sufficiency issue in a Rule 3.380(c) motion constitutes ineffective assistance of counsel, plain on the face of the record.

Thus, there is no justification for failing to address unpreserved evidence sufficiency issues on direct appeal. Further, such failure is inefficient because it does not resolve the issue but rather merely channels it to postconviction proceedings. Finally, it is unfair because the defendant generally will be forced to recognize and raise the issue in a postconviction motion, often while remaining incarcerated for a crime the state did not prove. The article concludes with a suggested rule change to handle this problem.

The F.B. Decision
The precise issue in F.B. had arisen before. The Florida Supreme Court issued conflicting decisions on point in 1974, State v. Barber, 301 So. 2d 7, 10 (Fla. 1974), and Negron v. State, 306 So. 2d 104, 108 (Fla. 1974). The district courts also disagreed on the issue, both for theft offenses and for evidence sufficiency issues in general.3

In Barber, the court affirmed a grand theft conviction because the value issue was not preserved, further noting the issue could be raised as an ineffective assistance of counsel claim under Rule 3.850.4 In Negron, the court (without citing Barber) held the failure to prove value was funda­mental error and reduced a grand theft conviction to one for petit theft.5 The F.B. court reaffirmed Barber and “h[e]ld the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error.”6

In F.B., the court began by noting the preservation rule promotes three goals: 1) it gives the trial court an opportunity to correct the error; 2) it prevents the “[d]elay and an unnecessary use of the appellate process [that] result from a failure to cure early that which must be cured eventually”; and 3) it “prevents counsel from allowing errors. . . to go unchallenged and later using the error to a client’s tactical advantage.”7 The court then quoted from prior cases that defined fundamental error as an error that “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without. . . the alleged error,” or “goes to the foundation of the case. . . and is equivalent to a denial of due process.”8

Turning to the sufficiency issue at hand, the court stated:

[T]he interests of justice are better served by applying [the preservation] rule. … Any technical deficiency in proof may be readily addressed[,] thus allowing the State to correct the error, if indeed it is correctable, before the trial concludes.
The deferential standard of review appellate courts apply to claims of insufficiency of the evidence—i.e., whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the [State], there is substantial, competent evidence to support the verdict. . . —further supports our holding. . . . In light of this standard of review and the interests the [preservation] rule serves, we hold that, with two exceptions, a defendant must preserve a [sufficiency] claim.9

The first exception was death penalty cases: Rule 9.140(i) of the Florida Rules of Criminal Procedure requires judicial review of evidence sufficiency, even if the issue is unpreserved. The second exception was “when the evidence is insufficient to show that a crime was committed at all”: If the evidence is “totally insufficient as a matter of law to establish the commission of a crime,” such “complete failure of the evidence” is fundamental error.10 Finally, the court cited with approval district court cases that had adopted the following test for fundamental error in evidence sufficiency issues: “when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law”; “[c]onviction of a crime which did not take place”; and “defendant’s conduct did not constitute the crime of which he was convicted.”11
There are several problems with the reasoning of F.B.

Analysis of F.B.
What is the exception to the preservation rule?

The F.B. court stated several formulations for the rule it adopted. Presumably, they are meant to be synonymous. It is not clear that they are.

We may divide sufficiency issues into three categories: positive insufficiency; negative insufficien­cy; and identity insufficiency. Positive insufficiency means the evidence affirmatively proves the offense did not occur; for example, the charge is possession of cocaine but the undisputed evidence shows the substance was heroin. Negative insufficien­cy means there is no record evidence to fully prove the offense but the evidence does not affirmatively disprove it; an example here would be a grand theft conviction in which the state presented no evidence at all as to the value of the stolen property. Identity insufficiency means the evidence proves the offense occurred but does not prove the defendant committed it. The formulations in F.B. conflict regarding what type(s) of insufficiency constitute fundamental error:

1) “[T]he insufficiency of the evidence to prove one element of a crime does not constitute fundamental error”: This formulation indicates negative insufficiency, at least as to a single element, will never amount to fundamental error. But this only tells us what fundamental error is not; it does not tell us what it is. Must the evidence be insufficient to prove two elements? Is two-element failure always fundamental error or does the preservation rule still apply in some such cases? And what is “one element” here? Is identity an element?

This formulation, read in light of the actual issue in F.B., may adopt an “included offense” logic: The state proved F.B. committed a theft offense, but failed to prove the additional element of value that would elevate the degree of the offense. But this formulation does not expressly contain such an “included offense” limitation. Rather, it adopts a blanket rule. But what if the unproven element is the defining element of the offense, so that the proven elements do not constitute a crime at all?

2) “[T]he evidence is insufficient to show that a crime was committed at all”: This formulation may answer the question just raised. If the failure to prove one element means the state failed to prove “a crime was committed at all,” this is fundamental error. But what if the evidence is sufficient to prove a crime, but not the crime of which the defendant was convicted? And what if the evidence was sufficient to prove the crime of conviction but insufficient to prove identity?

3) “[A] crime totally unsupported by evidence”; “[a] complete failure of the evidence”: Is there some distinction here between “totally unsupported” (or “complete failure”) and “supported by some evidence but not enough to prove beyond reasonable doubt”? And what does “totally unsupported” mean? The state always produces some evidence to support a charge. Similarly, what is “a complete failure”? Failure to prove what? One element? Every element? Identity?

Strictly speaking, this third formulation makes no sense. And how does this relate to the first formulation? If one element of the offense is totally unsupported by evidence, if there is a complete failure of evidence as to that element, is this fundamental error? Or does the “one element” rule in the first formulation control?

4) “[T]he facts affirmatively proven. . . do not constitute the charged offense as a matter of law”: This formulation may adopt a positive insufficiency test: fundamental error occurs only if the evidence affirmatively disproves the offense. But what if the evidence both disproves that offense and proves an uncharged offense? Would this formulation or the second formulation control? The evidence affirmatively disproves the offense of which the defendant was convicted but is not “insufficient to show that a crime was committed at all”; would this be fundamental error?

5) “[C]onviction of a crime which did not take place”: This formulation also may adopt a positive insufficiency standard. How can we know the crime “did not take place” unless the evidence affirmatively disproves it? And what if it is clear the crime took place but there is no evidence the defendant committed it? Is this fundamental error?

6) “[D]efendant’s conduct did not constitute the crime of which he was convicted”: This formulation may answer some of these questions. It is not enough to prove the defendant committed a crime; the evidence must prove he committed “the crime of which he was convicted.” But how does this relate to the first formulation? If the evidence is “insufficient to prove one element,” isn’t it insufficient to prove “the crime of which he was convicted”? Or does the apparent emphasis on the defendant’s conduct mean that only insufficiencies in the actus reus element of the offense (as opposed to the mens rea and “attendant circumstances” elements12) can be fundamental error?

In sum, the scope of the rule the F.B. court adopted is unclear.13

Why is preservation required at all, and why in some cases but not others?

The F.B. court said “the interests of justice are better served by” requiring preservation of sufficien­cy issues because this gives the state a chance to “correct the error.”14 As support for this conclusion, the court noted “the interests the [preservation] rule serves” and “[t]he deferential standard of review appellate courts apply to [sufficiency] claims.”15 The court’s reasoning here is flawed.

“The deferential standard of review” does not explain result in F.B. That standard is deferential to the state, to affirming convictions; even preserved sufficiency issues rarely succeed. Sufficiency issues raise pure questions of law. The record is read in a light most favorable to the state. The evidentiary record on appeal will be the same, regardless of whether there was an acquittal motion.16 How does the deferential standard of review explain the preservation requirement? And why doesn’t that deferential standard require preservation in the exception(s) allowed in F.B.?

This leaves us with two possible bases for the F.B. rule requiring preservation in some circumstances: 1) the state should be given a chance to “correct the error,” and 2) “the interests the preservation rule serves.” But these bases do not support the reasoning of F.B. either.

The primary reason the F.B. court gave for requiring preservation was to give the state a chance to correct the evidence sufficiency error. This logic has some weight. It is troubling if guilty defendants walk free because the state fails to produce available evidence, when the state was not notified of the evidentiary defect by a proper motion.

This logic is destroyed by Rule 3.380(c), which allows acquittal motions to be made after the jury is dis­charged. A sufficiency issue “may be raised for the first time” under this rule because this “further[s] the interests of justice [by] provid[ing] a procedural mechanism through which a substantive error can be corrected[,] thus promot[ing] judicial economy.”17

The state has no chance to correct the evidentiary error under Rule 3.380(c). If the interests of justice and judicial economy are promoted by allow­ing trial courts to con­sider suffi­cien­cy issues for the first time in post-trial motions, these same interests would be equally served by recogniz­ing such issues as fundamental error on appeal. Justice has no interest in affirming convictions based on insufficient evidence. As to judicial economy, it is true the granting of post-trial acquittal motions may eliminate the need for appeals. But this is true only if the acquittal motion resolves the whole case; other convictions, sufficiently supported by evidence, will still be appealed. Further, Rule 3.380(c) only eliminates the need for defense appeals; the state can appeal the granting of such motions.18 Finally, as discussed below, judicial economy is not served by refusing to address an unpreserved sufficiency issue on direct appeal, only to see it reemerge (as an ineffective assistance of counsel claim) in postconviction proceedings.19

And why is the state not given the chance to correct the error under the F.B. exception?20

Thus, the “correct the error” logic does not support the rule adopted in F.B.

The other interests served by the preservation rule do not explain F.B. either, again at least as long as Rule 3.380(c) remains unchanged. As noted above, the court in F.B. identified three such interests.21 To the extent these interests intertwine, the preservation rule is designed to prevent the ace-in-the-hole strategy: counsel’s “attempt­ing to gain a tactical advantage by failing to challenge errors and then seeking a second trial if the first decision is adverse.”22 The law cannot condone this strategy, particularly if the client approved it. If the client approved, the preservation rule requires him to live with the consequences.

If the client did not approve the strategy, the issue becomes murkier. The client retained the lawyer to provide competent and professional representation. Deliberately allowing serious error to occur is neither, particularly because: 1) appellate reversal is rarely guaranteed; 2) the appeal may cost the client money, as may a retrial after a successful appeal; and 3) the client may suffer serious consequences during the delay between unfavorable verdict and appellate reversal. Strict application of the preservation rule here requires clients to suffer the consequences of a questionable trial strategy they did not approve and may have rejected, had they been informed of it.

When there is no strategy, when the failure to preserve is mere attorney error, the issue becomes murkier still, particularly when the client in a no-strategy case is a criminal defendant. Unlike other litigants, criminal defendants have a constitutional right to effective assistance of counsel. The reliance in F.B. on the general interests served by the preservation rule must be assessed against this backdrop.

We will return to these general interests served by the preservation rule after discussing another significant ramification of the fact that Rule 3.380(c) allows post-verdict motions for acquittal: The failure to file a meritorious motion under that rule would constitute ineffective assistance of counsel.

Unpreserved Sufficiency Issues and Ineffective Assistance of Counsel
In Barber, the Florida Supreme Court said unpreserved sufficiency issues could not be raised on direct appeal as ineffective assistance claims because Rule 3.850 provided an adequate remedy.23 It has now been recognized that ineffective assistance claims may be raised on direct appeal if “the ineffec­tiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.”24

There are two components to an ineffective assistance claim: deficient performance (which asks whether counsel’s tactics were reasonable under the circumstances) and prejudice.25 The cases recognize that an ineffectiveness claim (raised in a postconviction motion) may be based on counsel’s failure to preserve a valid evidence sufficiency issue.26 Even without this precedent, it is clear that failure to raise a valid sufficiency claim in a Rule 3.380(c) motion constitutes ineffectiveness plain on the face of the record.

Deficient performance is apparent from the face of the record if the court cannot “determine that in any way the defense counsel’s failure to object was a strategic move.”27 There is no valid strategic reason for failing to file a Rule 3.380(c) motion.28 The state cannot cure the evidence deficiency at that time. The prejudice is equally clear. The remedy is outright acquittal. There is no downside risk. Thus, if it is clear from the record on direct appeal that the state failed to prove its case, defense counsel would have to be found ineffective if he failed to preserve the sufficiency issue in a Rule 3.380(c) motion.29

Recognizing all this, it is clear the other general interests served by the preservation rule do not support the conclusion in F.B. Failing to file a Rule 3.380(c) motion is not an ace-in-the-hole strategy.30 Neither the trial court nor the state can correct the error. As to promoting judicial economy and efficiency, the F.B. rule only causes “[d]elay and an unnecessary use of the [postconviction] process result[ing] from a failure to cure early that which must be cured eventually.”31

Moreover, defendants, the only trial participants not expected to know what evidence is needed to prove an offense are the only ones who suffer from the delay. They may spend more time in prison before the error is corrected.32 Generally, they will have to correct the error themselves. This means, first, they have to know there is an error. Then they will have to learn how to prepare a proper Rule 3.850 motion and, assuming they can do so, they will probably find their motions sitting in a pile of such motions in the trial court’s chambers, awaiting resolution.

Of course, all this assumes the sufficiency issue has merit. Perhaps the court in F.B. was concerned that a blanket fundamental error rule will encourage the raising of more unpreserved issues, thus increasing appellate courts’ workloads. Such concerns are unfounded, particularly if we have a rule that recognizes fundamental error in some circumstances.

Appeals from criminal convictions are virtually automatic already. Sufficiency issues are not raised that often; extra judicial labor would be needed only in those rare cases where there is a seri­ous suffi­ciency issue that was not raised at trial. In those rare cases, appellate counsel will no doubt argue the issue is one of fundamental error under F.B. In addressing this issue, the appellate court will probably form at least a preliminary opinion of the merits of the issue; we have to know what kind of insufficiency we are dealing with to determine whether it fails within the F.B. exception. Since suffici­ency issues tend to be relatively simple, judicial economy would be best served by recog­nizing a blanket fundamental error doctrine in this context. This would allow appel­late courts to go right to the merits without being detoured into the issue of the scope of the F.B. exception.

Conversely, the preservation rule increases courts’ workload at another point: motions for postconviction relief, based on trial counsel’s ineffectiveness.

Addressing unpreserved sufficien­cy issues on direct appeal is the most judi­cially economical way to handle the problem. Requiring preservation of suffi­ciency issues does not advance the goal of judicial economy, and may in fact hinder it.

In sum, there is no reason for requiring preservation in this context. Whether we consider the issue as fundamental error or ineffectiveness plain on the record is a matter of semantics.33

A Possible Solution
This leaves us with the problem of guilty defendants going free because the state, through simple oversight, failed to produce available evidence to cure deficiencies in its case. When defense counsel deliberately allows the deficiency to go uncorrected and then raises the issue on direct appeal, this smacks of the ace-in-the-hole strategy the preservation rule is designed to prevent. But the same can be said when counsel initially raises the issue under Rule 3.380(c). Thus, as long as Rule 3.380(c) exists in its present form, there is nothing illegitimate about such a strategy; indeed, it is authorized by the rule.

One possible solution here is to amend Rule 3.380 to allow a procedure similar to that in Rule 3.800(b), which allows unpreserved sentencing errors to be raised in a postsentencing motion. Rule 3.800(b) motions can be filed by appellate counsel. When a motion is filed, the case returns to the trial court for resolution. If that court denies the motion, the issue is preserved.

Amending Rule 3.380(c) in a similar fashion would allow appellate counsel to raise the sufficiency issue. The matter would be remanded to the trial court, to determine whether the state had evidence available to cure the problem. The same procedure would apply if trial counsel raised the issue before filing a notice of appeal (as Rule 3.800(b) authorizes). If the state had no evidence to cure the deficiency, an acquittal would be granted. If the state had such evidence, the remedy is less obvious.

Affirming the conviction seems to put us in the odd position of affirming, even though insufficient evidence was presented to the jury, on the assumption that, had the jury heard the unpresented evidence, it would have believed it beyond reasonable doubt. We have no way of knowing this. Affirming on the basis of unpresented evidence may infringe on the defendant’s right to a jury trial.

But the jury did convict, despite the insufficiency. This fact may lead one to conclude either the jury was not properly instructed, or it failed to understand or follow its instructions. Affirming a conviction by assuming the jury would believe the unpresented evidence seems to compound the problem: There was an obvious misfire between the jury and the law-instructing judge, but it doesn’t matter because the jury would have convicted anyway, had it heard the unpresented evidence and properly understood and applied the instructions.

But granting a new trial may implicate the defendant’s double jeopardy rights. It is clear that, if the state fails to present sufficient evidence, an appellate finding to that effect must result in an acquittal; retrial is not permitted.34

These problems may be avoided by phrasing the issue as an ineffective assistance claim. Defendants would not directly attack the sufficiency of the evidence; they would attack counsel’s failure to make a proper acquittal motion. If the postverdict motion currently allowed by Rule 3.380(c) is eliminated, then counsel’s failure to move for an acquittal would satisfy the prejudice component of an ineffectiveness claim only if the state did not have additional evidence to prove the missing element. Since we are concerned here with the legal sufficiency of the evidence, the credibility of the unpresented evidence is irrelevant. Phrased as an ineffectiveness claim, the question becomes whether the defendant was prejudiced by counsel’s failure to make a proper motion for acquittal. If the state would have cured the evidentiary defect had a motion been made, there is no prejudice; the evidentiary record would have contained legally sufficient evidence.35

This proposed change creates the problems of trial counsel’s filing a postverdict motion attacking his own effectiveness, or appellate counsel’s filing such a motion attacking the effectiveness of a colleague from the same office (a particular problem if both are public defenders). As a practical matter, however, this is not a problem. The only real issue raised by this motion is whether the state had evidence available to cure the deficiency. Trial counsel’s trial tactics are not an issue; the problem of one office colleague having to cross-examine another will not arise. As to the possibility of generating bad blood between colleagues, the raising of a sufficiency issue (or any issue) as fundamental error is, in practical terms, no more insulting to trial counsel than raising the same claim as an ineffectiveness claim. In both cases, trial counsel failed to properly preserve a meritorious issue. True, the ineffectiveness claim more directly pinpoints and exposes counsel’s failure. “Fundamental error” sounds more like something that just happened; nobody’s fault. However, as it is hard to imagine a valid tactical reason for failing to properly preserve an error so serious as to be fundamental, it is implicit in any finding of fundamental error that trial counsel made a serious mistake. Not offending the delicate sensibilities of trial lawyers may be a worthy goal, but we do not need to create serious constitutional concerns in an effort to protect those sensibilities.

Whatever the problems with this proposed solution, the present rules are clearly inadequate to deal with this problem. Under those rules, an appellate court must first determine whether a sufficiency issue is preserved. If so, the court can proceed directly to the merits.

If the issue was not preserved, the appellate court must determine whether the F.B. exception applies. If the court finds the insufficiency is within the F.B. exception, it can address the merits. If the insufficiency is not within the F.B. exception, then what? Does the court decline to address the merits but write an opinion noting the issue and advising the defendant to use Rule 3.850? Simply affirm (on grounds of waiver) and say nothing, hoping defendants can figure it out themselves? How does any of this promote judicial economy and the interests of justice? And what of the worthy goal of maintaining public confidence in the system? One can imagine the public reaction to an opinion such as the hypothetical one at the beginning of this article. Any rule that creates such a possibility needs to be reexamined.

1 In re Winship, 397 U.S. 358, 364 (1970).
2 See State v. Barker, 851 P.2d 394, 396 (Kan. Ct. App. 1993); Collier v. State, 999 S.W. 2d 779, 788-90 (Tex. Cr. App. 1999) (Keller, J., dissenting).
3 See cases cited at F.B., 852 So. 2d at 227-28.
4 Barber, 301 So. 2d at 9.
5 Negron, 306 So. 2d at 107-08.
6 F.B., 852 So. 2d at 227-29. The court in F.B. said Negron “tacitly. . . assum[ed]” the sufficiency claim was fundamental error, but “did not address that issue”; and, because Barber did expressly address the issue, Barber controls. Id.
7 Id. (citations omitted).
8 Id. at 229 (citations and internal quotation marks omitted).
9 Id. at 230 (citations and internal quotation marks omitted).
10 Id.
11 Id. (citations omitted).
12 “Attendant circumstances” refers to such things as the victim’s age, the value or ownership of the property involved, etc. See generally Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law §1.2(c) (2d ed. 1986).
13 The post-F.B. cases on point do not answer these questions. See Goad v. State, 887 So. 2d 415 (Fla. 2d D.C.A. 2004); Smith v. Crosby, 872 So. 2d 279 (Fla. 4th D.C.A. 2004); Baldwin v. State, 857 So. 2d 249 (Fla. 2d D.C.A. 2003); Lipovsky v. State, 854 So. 2d 707 (Fla. 2d D.C.A. 2003); see also Garcia v. State, 30 Fla. L. Weekly S263 (Fla. April 21, 2005); A.P.R. v. State, 894 So. 2d 282 (Fla. 5th D.C.A. 2005); Williams v. State, 892 So. 2d 1185 (Fla. 5th D.C.A. 2005).
14 F.B., 852 So. 2d at 230.
15 Id.
16 If the state would have introduced further evidence had an acquittal motion been made, then record in a case where a motion was made would be different from a record that had no such motion. But then the appellate court reviewing a record in which a motion was made would review a different record than it would have reviewed had no motion been made. The point here is not that an acquittal motion will never affect the evidentiary record in the trial court. It is that the evidentiary record on appeal will not be changed by an acquittal motion. The evidentiary record is what it is, regardless of any motion; the motion is not evidence. See State v. Ashley, 889 P.2d 723, 729 (Idaho Ct. App. 1994). Given this, it is not clear why the appellate standard of review should depend on the sufficiency of the motion.
17 State v. Stevens, 694 So. 2d 731, 732 (Fla. 1997) (footnote omitted).
18 Fla. Stat. §924.07(1)(j) (2004).
19 We may return to the point made in note 16 above: that the evidentiary record reviewed on appeal is unchanged by an acquittal motion. If a Rule 3.380(c) motion is denied, the evidentiary record will be the same in both the trial court and the appellate court. Both courts will apply the same standard of review; the trial court’s denial of the Rule 3.380(c) motion preserved the issue. But, if the appellate court applies the same standard of review to an issue preserved under Rule 3.380(c) and an issue preserved during trial, why apply a different standard to an unpreserved issue? Again, the evidentiary record, and the issue, are the same. The denial of a Rule 3.380(c) motion adds nothing to the evidentiary record.
20 Nor did the F.B. court amplify the relationship between the standard it adopted for fundamental error, and the “correct the error” rationale for requiring preservation. Must the appellate court determine from the existing record whether the state might have cured the evidentiary defect (had the issue been raised) before deciding whether it can address the unpreserved issue? If so, how is that to be done, when the record will likely be silent on the issue of whether the defect could have been cured?
21 F.B., 852 So. 2d at 229.
22 Williams, 892 So. 2d at 1187 (citation omitted).
23 Barber, 301 So. 2d at 9.
24 Blanco v. Wain­wright, 507 So. 2d 1377, 1384 (Fla. 1987). When Barber was decided, raising a successful evidence sufficien­cy issue on appeal resulted in a new trial. Thus, at that time, sufficiency issues were essentially no different from other trial issues. Although different issues required different standards of review, the remedy for successfully raising an issue was the same. It was later estab­lished that double jeopardy rules barred a retrial when an appellate court found the evidence insufficient as a matter of law. Tibbs v. State, 397 So. 2d 1120 (Fla. 1981).
Thus, concern for the ace-in-the-hole strategy may have been behind Barber’s reasoning here. But the law has changed since Barber, seriously undermining Barber’s diverting unpreserved sufficiency issues into the postconviction arena.
25 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
26 E.g., Neal v. State, 854 So. 2d 666 (Fla. 2d D.C.A. 2003).
27 Eure v. State, 764 So. 2d 798, 801 (Fla. 2d D.C.A. 2000).
28 See Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d D.C.A. 2002); Holsclaw v. Smith, 822 F.2d 1041, 1047 (11th Cir. 1987); State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999); Holland v. State, 656 So. 2d 1192, 1197-98 (Miss. 1995); State v. Lopez, 27 P.3d 237, 240-41 (Wash. App. 2001).
29 See cases cited in note 28 above; Mosely v. State, 836 A.2d 678, 692 (Md. 2003); State v. Denis, 678 N.E.2d 996 (Ohio App. 1996); see also Lambert v. State, 811 So. 2d 805 (Fla. 2d D.C.A. 2002); Johnson v. State, 796 So. 2d 1227 (Fla. 4th D.C.A. 2001); State v. Bodden, 756 So. 2d 1111 (Fla. 3d D.C.A. 2000); Rios v. State, 730 So. 2d 831 (Fla. 3d D.C.A. 1999).
30 See Collier, 999 S.W.2d at 788-90 (Keller, J., dissenting).
31 F.B., 852 So. 2d at 229; see Eure, 764 So. 2d at 802; Barber v. State, 286 So. 2d 23, 24-26 (Fla. 1st D.C.A. 1973), quashed, 301 So. 2d 7, 9 (Fla. 1974); State v. Ashley, 889 P.2d 723, 729 (Idaho Ct. App. 1994); State v. Lyles, 517 A.2d 761, 768-69 (Md. 1986) (Eldridge, J., concurring); State v. McAdams, 594 A.2d 1273, 1278-79 (N.H. 1991) (Batchelder, J., concurring specially).
32 For examples of the type of delay one might find here, see Cupon v. State, 833 So. 2d 302 (Fla. 1st D.C.A. 2002); State v. Fennell, 578 A.2d 329 (N.H. 1990).
33 See generally Richard J. Sanders, Unpreserved Issues in Defense Criminal Appeals, 76 Fla. B.J. 51 (July/Aug. 2002).
34 Tibbs v. State, 397 So. 2d 1120 (Fla. 1981).
35 See T.H. v. State, 782 So. 2d 995, 997, n.1 (Fla. 4th D.C.A. 2001) (Klein, J., concurring). Recent double jeopardy case law indicates there would be no problem with the proposed rule change. See Smith v. Massachusetts, 125 S. Ct. 1129 (2005).

Richard Sanders graduated the University of Pennsylvania Law School in 1982. He has been practicing in Florida since 1984. Mr. Sanders is currently working in the appellate division of the Tenth Circuit Public Defender’s Office.