Opinion
No. 93-867.
December 30, 1993.
Appeal from the Circuit Court for Orange County; Michael F. Cycmanick, Judge.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellant.
Arthur J. England, Jr., and Elliot H. Scherker of Greenberg, Traurig, Hoffman, Lipoff, Rosen Quentel, P.A., Miami, for appellee.
The State appeals from the trial court's order on post-trial motions, which granted a new trial in a criminal case, but if the State failed to take an appeal, then promising to enter a judgment of acquittal. Plotka was convicted after a jury trial in November, 1990, of committing a lewd act upon a child (§ 800.04). We affirm in part.
We hold that the trial judge acted within his discretion in ordering a new trial in this case. He determined that certain prejudicial testimony by a State witness should not have been admitted. However, we disagree with the trial judge that the State failed to adduce sufficient evidence to take this case to the jury, had the State witness's objected-to testimony been excluded. Accordingly, we affirm the trial judge's order of a new trial in this case; and remand this cause to the lower court for further proceedings.
See State v. Kopko, 596 So.2d 669 (Fla. 1992) and Pardo v. State, 596 So.2d 665 (Fla. 1992).
AFFIRM in part; REMAND.
COBB and PETERSON, JJ., concur.