IN THE DISTRICT COURT OF APPEAL OF THE STATE O F FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME E XPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
DY LAN THOMAS ROBERTS , A ppellant ,

v. Case No. 5D 21

- 2537 LT Case No. 18

- CF

- 3729

- A

- X STATE O F FLORIDA ,

Appellee

. ________________________________/ Opinion filed October

14 , 2 022 Appeal from t he C ircuit C ourt for M arion County , Steven G. R ogers , Judge. Matthew J

. M etz, P ublic D efender, a nd Darnelle P aige La wshe, A ssistant P ublic Defender, Daytona Beach, for Appellant. Ashley M oody, A ttorney G eneral, Tallahassee, an d R obin A

. C ompton, Assistant A ttorney G eneral, D aytona Beach, for Appellee. NARDELLA, J. Dylan Thomas Roberts raises t wo issues in t he appeal of his judgment and sentence for

v ehicular homicid e and causing deat h whil e driving on a2 suspended license. First, he argues that the trial court erred when it held a discovery violation committed by the State was trivial and did not substantially hamper th e defense’s trial preparation and strategy. Second, he argues that the trial court applied the wrong standard to deny his motion for new trial. We examine each issue in turn. As to the first issue , Roberts argue s that the State committed a discovery violation when it disclosed the investigati ng officer as a witness, without ever indicating that he would offer expert testimony. The defense deposed the investigating officer before trial , during which he offered his opinion as to the cause of the accident but pro vided little explanation to support his conclusion. D uring trial , though , the officer repeated his
conclusion but provided more explanation about the facts supporting his opinion. In response to the new testimony, Roberts requested a Richardson hearing , Richardson v. State , 246 So. 2d 771 (Fla. 1971 ) , claiming the State failed to disclose the investigating officer as an expert witness. D uring the Richardson hearing , the trial court considered whether the discovery violatio n was inadvertent or willful, substantial or trivial, and had a prejudicial effect on Roberts ’ trial preparation. See Andres v. State , 254 So. 3d 283, 293 (Fla. 2018) (citation omitted)

.3 Agreeing with Roberts, the trial court found the State’s failure to list the investigating officer as an expert witness constituted a dis covery violation. The trial court then specifically asked counsel to explain how Roberts was prejudiced by the discovery violation, to which his counsel stated on ly that the investigating officer’s trial testimony was a “complete contradiction” to his deposition testimony

. Focused on the only argument offered, the trial court ruled that Roberts c ould bring out the alleged inconsistencies during his

cross - examination of the witness

. Now, for the first time in this case, Roberts explains that had he known the investigating officer was going to offer expert testimony he would have retained his own expert to rebut that testimony. The failure to rais e this specific argument below deprived the trial court from considering it and, hence, it was not preserved for our review. See § 924.051(3), Fla. Stat. (2020) (requiring preservation in criminal cases); Tillman v. State , 471 So. 2d 32, 35 (Fla. 1985) ( “[i] n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered pr eserved.” ); I.R.C. v. State , 968 So. 2d 583, 589 (Fla. 2d DCA 2007) (“ A defendant may not argue in the trial court that a consent was involuntary for certain reasons and then obtain a reversal4 on appeal on the ground that the consent was involuntary for ot her reasons. Any specific reason for reversal must be a specific reason that was advanced by the appellant in the trial court.” ). 1 Accordingly, we neither consider nor express any opinion regarding the merit of the first issue. Roberts ’ second issue fares better. A motion for new trial requires the trial court to evaluate whether the jury’s verdict is contrary to the weight of the evidence and to act, in effect, as an additional juror. Fla. R. Crim. P. 3.600(a)(2); Tibbs v. State , 397 So. 2d 1 120, 1123 n.9 (Fla. 1981). Here, the trial court appears to have applied the sufficiency of the evidence standard to deny the motion for new trial. As the State concedes, this was

error. See Jordan v. State , 244 So. 3d 1178, 1 1 79 (Fla. 1st DCA 2018) (reversing denial of motion for new trial where trial court implied that it denied the motion because there was insufficient evidence to allow the jury to reach the opposite decision); Fulword v. State , 29 So. 3d 425, 426 (Fla. 5th D CA 2010) (reversing denial of motion for new trial where it appeared the trial

1 We find Robert s’ reliance on Scipio v. State , 928 So. 2d 1138 (Fla. 2006) in favor of preservation unavailing . In that cas e, the trial court did not hold a Richardson hearing and, thus, the defendant was deprived of an opportunity to argue that he was prejudiced by the S tate’s discovery violation. Id

. Here, the trial court held a proper Richardson hearing and, thus, unlike the situation in Scipio , Robert s had an opportunity to explain how he was prejudiced by the State’s discovery violation. Therefore, as discussed abo ve, any specific argument regarding prejudice that was not raised before the trial court was not preserved for appeal.5 court did not apply the correct standard); Geibel v. State , 817 So. 2d 1042, 1045 (Fla. 2d DCA 2002) (reversing denial of motion for new trial where it
was unclear whether the t rial court applied the correct standard). Accordingly, we reverse the order denying Roberts ’ motion for new trial and
remand the case to the trial court to consider the weight of the evidence when ruling on the motion for new trial. See Fulword , 29 So. 3 d at 426. AFFIRMED in part; REVERSED in part; and REMANDED

. EDWARDS and EISNAUGLE , JJ., concur.