Debose v. State—(J. Tanenbaum; 1DCA; 2/22/23).
The First DCA’s war on supplementing the record continues. Judge Tanenbaum wrote a lengthy order in regard to a motion to supplement the record in a criminal direct appeal. The Appellant/Defendant entered a plea, and he reserved his right to appeal the denial of his dispositive motion to suppress. The public defender identified the suppression issue as an appellate issue and filed a motion to transcribe the suppression hearing, which was granted and then included in the record on appeal.
The public defender, on appeal, took the full 60-days permitted for an agreed extension after the expiration of the ordinary deadline for the initial brief. On the day the brief was again due, counsel moved to supplement the record with several items. The first set were three exhibits from the suppression hearing that should have been included in the record on appeal but were not. Two were search warrants and one was a video of the victim’s interview that was played at the hearing. The DCA allowed supplementation with these items. Fla. R. App. P. 9.200(a)(1) requires the lower-court clerk, in a criminal appeal, to transmit “all exhibits that are not physical evidence” and a copy of any CD, DVD, “or similar electronically recorded evidence,” but the clerk failed to do that with the exhibits in question.
The DCA denied counsel’s request to supplement with transcripts of three hearings that were not previously mentioned in any designation to the court reporter or filed with the clerk.
Rule 9.200(f)(1), Fla. R. App. P. allows for correction of the record if there is an error or omission, and the court cannot decide the case based on an incomplete record until the opportunity to supplement has been given. Judge Tanenbaum states that this rule can be used to supplement with something that should have been there all along or, instead, to supplement with something that counsel, in good faith, determines to be necessary for a legal argument in the case.
The motion to supplement with transcripts of three hearings did not explain how the hearings were relevant to the issues on appeal except that counsel wanted to review the hearings to determine if any appellate issues exist.
The Court essentially accused counsel of using the supplementation as a back-door extension. The court, instead, suggests that no order is needed from the appellate court to order more transcripts. Rule 9.140(f)(2)(B) allows either party to file motion in the lower tribunal to reduce or expand the transcripts. And a public defender’s office (this case involved a PD attorney) has authorization under 5 sections 27.51(6), and 27.58, 29.006(2), to order transcripts. And requests for additional transcripts can be made in the trial court. If counsel does that and then spots an issue relevant to the appeal, at that point, counsel could file a motion to include it in the appellate record under Rule 9.200(f). There is no comment on whether the DCA would approve a motion for extension in order to do so.
The court noted that reviewing the record in advance takes “planning and diligence,” which was not present in the instant case.
The court then gave the clerk of court 30 days to transmit the exhibits and gave the PD 15 further days after transmission to complete and file the Initial Brief.
JUDGE KELSEY CONCURRED IN PART AND DISSENTED IN PART, as she would have granted the motion to supplement in full. She stated, “We’ve made too much out of a simple and extremely common unopposed motion to supplement the record on appeal, and thereby we have injected untenable delay in this case.” (NOTE: Judge Kelsey’s complaint about the “untenable delay” is well taken. It is hard not to comment on the confusing standard the DCA employs for timely action. The two judges in the majority take the public defender to task for not identifying the three denied transcripts sooner. They lambast counsel for not moving to supplement the record until 90 days after the appellate appointed her office to handle the appeal. She was supposed to review the entire record earlier in the process. But the three-judge panel (presumably with its nine law clerks in addition to the staff attorneys on the motions panel) took a whopping 141 days to issue the order on what Judge Kelsey calls a “simple and extremely common” motion to supplement. The disparity between the majority’s expectations for itself and its battery of lawyers versus its expectations for counsel acting alone is hard to understand.)
Judge Kelsey backs up appellate attorneys in their basis for sifting through the record even when trial counsel doesn’t mention a hearing in its statement of judicial acts, as those “too often” consist of boilerplate statements about challenging the “judgment and sentence.” Judge Kelsey places the burden on trial counsel to “do better at the outset,” and defends appellate counsel’s ability to “make up for trial counsel’s failures and omissions.”
She does agree that “a lot of lawyers seem to be abusing” motions to supplement as back-door extensions, and urges all lawyers to make perfecting the appellate record as early as possible a higher priority, but she would have granted the supplementation with the three hearing transcripts.