State v. Plotka

627 So. 2d 1353, 1993 Fla. App. LEXIS 13185, 1993 WL 540158

• Court: District Court of Appeal of Florida
• Decided: December 30, 1993
• Docket: No. 93-867
• Status: Published

Opinion

W. SHARP, Judge.

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.¹ 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 objeeted-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.

AFFIRM in part; REMAND.

COBB and PETERSON, JJ., concur.

1 . See State v. Kopko, 596 So.2d 669 (Fla.1992) and Pardo v. State, 596 So.2d 665 (Fla.1992).