GLENN ALAN FOLDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Glenn Alan Folds appealed his sentencing, claiming the trial court departed from sentencing guidelines. The appellate court granted a motion to supplement the record to include trial testimony necessary to review the factual basis for the sentencing departure.
The court granted the motion to supplement the record to include trial testimony relating to facts upon which the trial court relied in imposing the departure sentence. The court held that while sentencing appeals typically require only the sentencing transcript, trial testimony is necessary when the departure reasons depend on facts presented at trial.
[1] Appellate counsel may supplement the record on appeal to include trial testimony when the trial court's sentencing departure is based on facts established during the tria…
[2] A departure sentence based on facts learned during trial requires a record of those facts for appellate review.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The legal correctness of a sentence should usually be reviewable on appeal by reference only to a transcript of a sentencing proceeding before the trial court and the sentencing guidelines scoresheet and, perhaps, the pre-sentence investigation, without the necessity of a transcript of the entire guilt-determining portion of the trial.”
Establishes the general rule limiting sentencing appeals to the sentencing transcript
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFolds was convicted and sentenced by the trial court. The trial public defender filed a notice of appeal limited to sentencing issues and designated o…
The full statement of facts, procedural history, and disposition for this case are member content.
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ON MOTION FOR REHEARING, etc.
PER CURIAM.
Upon considering the appellant’s Motion for Rehearing, we. withdraw our opinion filed February 2, 1989 and substitute the following opinion:
ON MOTION TO SUPPLEMENT RECORD
PER CURIAM.
The defendant was represented by the public defender of the Fifth Judicial Circuit at his trial, conviction and sentencing in the trial court. The trial public defender filed a notice of appeal relating to the sentencing only. The trial court adjudicated the defendant insolvent for purposes of appeal and, pursuant to section 27.51(4)(e), Florida Statutes, appointed the public defender of the Seventh Judicial Circuit to represent the defendant on appeal. The trial defense counsel served a statement of the judicial acts to be reviewed limited to reviewing a departure from the sentencing guidelines and directed the court reporter to transcribe and file only the sentencing proceedings. The appellate public defender has filed a motion with this court to supplement the record on appeal to include trial testimony, stating that while appellate counsel has contacted trial counsel and trial counsel has stated that no important issues arose at trial, nevertheless, appellate counsel states that he “does not feel comfortable filing an Anders brief without checking the departure order against the trial testimony.”
Rule 9.140(d), Florida Rules of Appellate Procedure, provides that:
If a defendant’s designation of a transcript of proceedings requires expendí- ture of public funds, trial counsel for the defendant (in conjunction with appellate counsel whenever possible) shall serve, within 10 days of filing the notice, a statement of the judicial acts to be reviewed and a designation to the court reporter requiring preparation of only so much of the proceedings as fairly supports the issues raised. Either party may file motions in the lower tribunal to reduce or expand the transcript.
The legal correctness of a sentence should usually be reviewable on appeal by reference only to a transcript of a sentencing proceeding before the trial court and the sentencing guidelines scoresheet and, perhaps, the pre-sentence investigation, without the necessity of a transcript of the entire guilt-determining portion of the trial. However, where the transcript of the sentencing proceeding shows that the trial judge departed from the guidelines recommended sentencing range based on facts learned by the trial judge during the trial, then appellate counsel and the appellate court may need a record of those facts in order to review the factual basis for the departure sentence. This is such a case. At sentencing, the trial court stated that a departure sentence was being entered after careful consideration of “the facts that were established during the trial” and in. this case, the written reasons for departure are based on the circumstances surrounding the commission of the crime and the resulting injury to the victim as the evidence of those facts was presented at trial. Accordingly, appellant’s counsel’s motion to supplement the record on appeal is granted to authorize a transcript of those portions of the trial as relate to the facts upon which the trial court relied in imposing the departure sentence in this case. Appellant’s counsel’s motion for extension of time to file an initial brief is also granted.
DAUKSCH, COBB and COWART, JJ., concur.