County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Sufficiency of the Evidence- There was substantial, competent evidence to support the verdict that defendant was in violation of Fla. Stat.§316.2065.  Judgment and sentence affirmed.  Cooper v. State No. 02-85 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

 

KIM COOPER,

            Appellant,

 

vs.                                                                   Appeal No: CRC02-00129CFANO

 

STATE OF FLORIDA,

Appellee.

____________________________/

 

 

Opinion filed _________________________.

 

Appeal from verdict, judgment and sentence Pinellas County Court

 

County Judge Michael F. Andrews

 

Anthony Clifton, Esq.

Attorney for Appellant

 

Sherman W. Smith, Esq.

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant’s appeal of the judgment and sentence entered by the Pinellas County Court after a non-jury trial.  After reviewing the briefs and record, this Court affirms the trial court’s decision.

            On June 4, 2001, the defendant was riding her bicycle on 9th Street at 6:05 p.m. when she was stopped by Office Bruce Taylor of the St. Petersburg Police Department and cited for reckless driving.  The case was set for non-jury trial on November 26, 2001.  On the morning of trial, the charge was amended from reckless driving to the lesser civil infraction of Violation of Bicycle Regulations, Fla. Stat.§316.2065.  Officer Taylor testified that while on routine patrol, he observed several cars in front of him that were suddenly stopping and changing lanes abruptly.  The officer observed the defendant riding her bicycle in the center of the right southbound lane.  The officer testified that there were approximately ten cars all around, in the back of and in the lane beside the defendant that were slamming on their brakes and drastically changing lanes.  The officer had taken photographs of the roadway where the defendant was traveling, which were introduced into evidence.  On cross-examination, the officer testified that he had measured the roadway where the photographs had been taken.  The roadway measured eleven and one-half feet from lane line to lane line, with six inches of roadway on the right and four inches of roadway on the left.  The defendant presented the testimony of William Boudreau.  Mr. Boudreau’s professional responsibility is to make bicycling and walking safer and more convenient as modes of transportation.  Mr. Boudreau was accepted by the trial court as an expert.  Mr. Boudreau testified that the Florida Department of Transportation “Green Book” standard for a traffic lane is twelve feet.  He stated that the lane of eleven and one-half feet would be substandard for a cyclist and a vehicle to safely share the lane together.  However, upon reviewing the photograph of the roadway entered into evidence, Mr. Boudreau testified that an automobile could pass the bicyclist.  At the close of the evidence, the court found the defendant in violation of Fla. Stat.§316.089.

This court agrees with the trial court that the defendant was in violation of Fla. Stat.§316.089.  In reviewing a finding of a jury trial, a judgment of conviction is presumed correct and a defendant’s claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict.  Terry v. State, 668 So.2d 954 (Fla. 1996).  The appellate court must construe all the evidence, and reasonable inferences there from, in a manner most favorable to sustaining the trial court’s ruling.  Hines v. State, 737 So.2d 182 (Fla. 5th DCA 1999).  The trial court’s application of the law to the facts of this case was based on competent, substantial evidence, which indicated that the lane where Officer Taylor cited the appellant was not a sub-standard lane as defined in Fla.Stat.§316.2065(5)(a)(3).  The evidence before the trial court included the testimony of Officer Taylor, the photographs of the roadway were the defendant was cited, and the testimony of the defense expert that if the passing car were to stay to the left most portion of the lane, a car could safely pass the cyclist. 

This Court finds that there is substantial competent evidence to support the trial court’s finding of guilt.  It is therefore,

 

ORDERED AND ADJUDGED that the verdict, judgment and sentence are affirmed.

 

DONE AND ORDERED in chambers, at Clearwater, Pinellas County, Florida this _____ day of November, 2002.

 

 

 

 

___________________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

 

 

 

____________________________________

W. Douglas Baird

Circuit Judge

 

 

 

___________________________________

Timothy R. Peters

Circuit Judge

Copies furnished to

 

The Honorable Michael F. Andrews

 

Anthony Clifton, Esq.

Attorney for Appellant

2143 5th Avenue North

St. Petersburg, FL 33713

 

Sherman W Smith, Esq.

Attorney for Appellee

City of St. Petersburg Police Department

1300 First Avenue North

St. Petersburg, FL 33705