Evidence sufficiency and fundamental error in criminal cases.

• Author: Sanders, Richard J.
• Position: Florida

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...