JUAN CARLOS LUCERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court's denial of a motion to disclose a confidential informant must be reversed because the in-camera hearing was not transcribed, preventing proper appellate review.
Juan Carlos Lucero was convicted of attempted trafficking and conspiracy to traffic in cocaine. Before trial, Lucero moved to disclose the confidentia…
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PER CURIAM.
Juan Carlos Lucero appeals from a final judgment of conviction for attempted trafficking and conspiracy to traffic in cocaine. For the following reason, we reverse and remand for a new trial.
Before trial, Lucero moved for disclosure of the confidential informant used by police in this case. The trial court concluded that Lucero was entitled to an in-camera hearing on the issue of whether the confidential informant should be produced. After the hearing, the trial court denied Lucero’s motion to disclose. However, on appeal, we cannot properly determine the relevant facts forming the basis of the trial judge’s conclusion or determine whether there was an abuse of discretion because the in-camera hearing was not transcribed. See Felton v. State, 534 So. 2d 911 (Fla. 3d DCA 1988); Wester v. State, 368 So. 2d 938 (Fla. 3d DCA 1979). We decline to speculate on the various legal and factual theories upon which the trial judge’s decision may have been based. Our holding is particularly appropriate in light of the state’s failure to cross-appeal Lucero’s motion for a disclosure hearing and the state’s concession that no transcript exists.
We reverse and remand for a new trial. Assuming that Lucero’s motion for disclosure of the confidential informant is once again denied, there will then be a record sufficient for review of the points raised on appeal.
Reversed and remanded.
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Heriberto Garcia v. State, 578 So. 2d 325 (Fla. 4th DCA 1991)…dge and witnesses as to what occurred. ... Bannerman v. Wainwright, 283 So. 2d 124, 125 (Fla. 1st DCA 1973). The trial judge’s affidavit and the attached document with his notes constituted a record of the hearing. Garcia relies on Lucero v. State, 564 So. 2d 158 (Fla. 3d DCA 1990) (appellate court had no basis to decide appeal if no transcript of in camera hearing exists). However, in Lucero it appears that no one attempted to recreate the record. At oral argument, Garcia argued that a reconstruction of th…1 / 2
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Brown v. State, 65 So. 3d 629 (Fla. 4th DCA 2011)…luded from the in-camera hearing.” Id. Garcia concluded that the trial court’s affidavit was insufficient for purposes of the rules and appellate review, because it was a “unilateral recollection.” Id. It therefore reversed, citing Lucero v. State, 564 So. 2d 158 (Fla. 3d DCA 1990), where the third district reversed and remanded a case for a new trial where an in camera hearing was not transcribed. Trying to avoid the application of Garcia, the state points out that, unlike the situation in Garcia, there ha…
Authorities Cited
- Wester v. State, 368 So. 2d 938 (Fla. 3d DCA 1979)
- Felton v. State, 534 So. 2d 911 (Fla. 3d DCA 1988)