MICHAEL FITZGERALD LEE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Lee appealed his conviction, challenging the denial of his motion to suppress evidence. The appellate court found the reconstructed record of the suppression hearing inadequate and remanded for a de novo suppression hearing before the trial court, with the new transcript to serve as the record on appeal.
The reconstructed record was inadequate, and therefore the appellate court relinquished jurisdiction to the trial court with directions to conduct a de novo hearing on the motion to suppress. The new hearing transcript would constitute the reconstructed record for appellate review.
[1] A reconstructed record that is inadequate due to the inability of parties and the trial judge to recall events and the failure to settle disputes about what occurred is i…
[2] When a reconstructed record is inadequate and further reconstruction efforts are unavailing, a court may relinquish jurisdiction to the trial court to conduct a de novo h…
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Join FLexlaw to unlock all legal intelligence“its inadequacy is in part due to the inability of the parties and trial judge to recall what occurred almost a year and one-half after the hearing, and in part due to the fact that disputes about what occurred were not resolved and the record, therefore, not settled and approved”
Establishes why the reconstructed record was deficient
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Join FLexlaw to unlock all legal intelligenceLee was convicted and appealed, making a central issue the trial court's denial of his motion to suppress evidence. The original suppression hearing r…
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PER CURIAM.
We previously relinquished jurisdiction to the trial court for the purpose of reconstructing the record of the hearing on the defendant’s motion to suppress, the denial of which motion is the central issue on the defendant’s instant appeal from his conviction. The reconstructed record, such as it is, is now before us, and we find it inadequate in nearly all respects. Its inadequacy is in part due to the inability of the parties and trial judge to recall what occurred almost a year and one-half after the hearing, and in part due to the fact that disputes about what occurred were not resolved and the record, therefore, not settled and approved. Because it is apparent that further efforts to reconstruct the record in the manner attempted will be unavailing, we relinquish jurisdiction to the trial court for a period of sixty (60) days with directions to conduct a de novo hearing on the defendant’s motion to suppress, the transcript of such hearing to constitute the reconstructed record.
Jurisdiction relinquished.
ON MOTION FOR CLARIFICATION
PER CURIAM.
The opinion of this court filed on December 30, 1986, is clarified to direct that the de novo hearing on the defendant’s motion to suppress may be held before any judge of the Criminal Division of the Eleventh Judicial Circuit to whom it is assigned and that such judge shall, after conducting said hearing, rule on the motion. If the defendant’s motion to suppress is denied, the defendant may have that denial reviewed in this appeal and may file appropriate supplemental briefs; if the defendant’s motion to suppress is granted, the state may have that ruling reviewed by a separate appeal.
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Citator
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Blasco v. State, 680 So. 2d 1052 (Fla. 3d DCA 1996)…la. 5th DCA 1992)(ordering a new trial where the court reporter’s notes of six days of a ten day trial were destroyed by fire, the parties could not agree on a reconstructed record, and the trial judge had no memory of the proceeding); Lee v. State, 499 So. 2d 66 (Fla. 3d DCA 1986)(ordering a de novo hearing on the defendant’s motion to suppress where the record of the original suppression hearing was unavailable; the reconstructed record was deemed inadequate due to the fading memories of the parties and th…
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Vasiliki Zafirakopoulous v. S. Miami Int'l Crabhouse Corp., 513 So. 2d 1353 (Fla. 3d DCA 1987)…bad faith); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (late and incomplete compliance with discovery requests could not support dismissal in absence of showing of bad faith), rev. denied, 511 So. 2d 297 (Fla.1987); Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986) (six-day delay in answering interrogatories insufficient to warrant dismissal of suit); United Servs. Auto. Ass’n v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986) (trial court abused discretion in striking defendant’s pleadings and…
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Stimpson Computing Scale Co., Inc. v. The Honorable Francis X. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987)…of willful nonattendance of scheduled depositions); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (late and incomplete compliance with discovery requests could not support dismissal in absence of showing of bad faith); Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986) (six-day delay in answering interrogatories insufficient to warrant dismissal of suit); Summit Chase Condominium Ass’n, Inc. v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA 1982) (fact that plaintiff’s counsel was laggard…
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