5D99-3131opSTATE-BATTERTON

State: Florida

Court: Florida Fifth District Court

Docket No: 5D99-3131opSTATE-BATTERTON

Case Date: 05/21/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

STATE OF FLORIDA, Appellant, v. JESSE FRANKLIN BATTERTON, Appellee. ___________________________/ Opinion filed May 25, 2001 Appeal from the Circuit Court for Marion County, William T. Swigert, Judge. Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant. James T. Reich, Ocala, for Appellee. PER CURIAM. The State timely appeals the trial court's order granting Jesse Batterton's motion for new trial. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(C). The standard of review of a trial court's decision on a motion for new trial is well settled: A motion for a new trial is addressed to the sound judicial discretion of the trial court, and the presumption is that [it] CASE NO. 5D99-3131

exercised that discretion properly. And the general rule is that unless it clearly appears that the trial court abused its discretion, the action of the trial court will not be disturbed by the appellate court. Spaziano v. State, 692 So.2d 174, 177 (Fla. 1996)(quoting Henderson v. State, 135 Fla. 548, 561, 185 So. 625, 630 (1938)(Brown, J., concurring specially, with Terrell, C.J., and Whitfield and Chapman, JJ., concurring). Because we believe that the trial court did not abuse its discretion, we will not disturb the trial court's action. See Fulton v. State, 335 So.2d 280, 283-84 (Fla. 1976)("[I]t is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination"). AFFIRMED. THOMPSON, C.J., COBB and PLEUS, JJ., concur.

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