JOHN G. ARIKO, JR. AND EPOCH MANAGEMENT, INC., N/K/A EM MANAGEMENT, INC., APPELLANTS,
v.
ANTHONY J. NICHOLSON, APPELLEE
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The court held that a new trial is warranted when reconstruction of essential portions of a destroyed trial record is impossible.
Appellants appealed the denial of their motion to stay execution and vacate a money judgment. A significant portion of the trial record was destroyed …
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PER CURIAM.
Appellants brought this non-final appeal from the trial court’s denial of their motion to stay execution of a money judgment and to vacate the judgment. Nicholson had obtained a large money judgment against appellants following a ten-day jury trial. After the trial, because a substantial portion of the court reporter’s notes (six days of the ten-day trial) were destroyed by an accidental fire, we entered a stay of the judgment. Through a series of orders, we requested that the trial court and parties, pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), make an effort to reconstruct at least those portions of the record essential for our consideration of the appellants’ issues on appeal.
After more than four months of honest effort by all concerned, the attempt has failed. Appellants and appellee cannot agree on the reconstructed record and the trial judge has said he cannot remember. This is not surprising since it was a lengthy trial involving complex liability and damage issues, and it took place nine months prior to the reconstruction effort.
Accordingly, we can see no other alternative than granting a new trial. See Daniels v. State, 575 So. 2d 722 (Fla. 1st DCA1991); North Dade Security Ltd., Corp. v. Department of State, 530 So. 2d 1040 (Fla. 1st DCA1988); Vernell v. Edge, 389 So. 2d 327 (Fla. 5th DCA1980); Copeland v. Capital Bank of Miami, 372 So. 2d 1149 (Fla. 3d DCA1979), cert. denied, 383 So. 2d 1192 (Fla.1980); Jackson v. State, 308 So. 2d 600 (Fla. 3d DCA1975). Accordingly, we reverse the order appealed in this case, vacate the money judgment, and remand to the lower court for new trial and proceedings consistent therewith.
REVERSE and REMAND.
DAUKSCH, W. SHARP and HARRIS, JJ., concur.
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Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005)…to be imposed, and the final disposition thereafter to be entered in the minutes of the court. The “pronouncement” becomes final when the sentencing hearing ends. See Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982). See also Hickman v. State, 606 So. 2d 435, 437 (Fla. 2d DCA 1992). While Rule 3.800(a), Florida Rules of Criminal Procedure, authorizes a sentencing court, to correct an illegal sentence, the rule does not permit the court to increase a legal and unambiguous sentence1 after the pronouncemen…
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Colon v. State, 905 So. 2d 1000 (Fla. 5th DCA 2005)…be imposed. Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005). As we explained in Comtois: The “pronouncement” becomes final when the sentencing hearing ends. See Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982). See also Hickman v. State, 606 So. 2d 435, 437 (Fla. 2d DCA 1992). While Rule 3.800(a), Florida Rules of Criminal Procedure, authorizes a sentencing court to correct an illegal sentence, the rule does not permit the court to increase a legal and unambiguous sentence after the pronouncement…
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Ariko v. Nicholson, 632 So. 2d 174 (Fla. 5th DCA 1994)…pellants sought a new trial because they were denied an appeal of the trial they lost. This court awarded a new trial because the court reporter lost the trial notes in a house fire, and the record could not be reconstructed. See Ariko v. Nicholson, 606 So. 2d 435 (Fla. 5th DCA 1992). Through no real fault of anyone the new trial must be had so that effective appellate review can be afforded the losing party. That decision to permit a retrial was not on the merits of the appeal but as a result of the unusual…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vernell v. Edge, Inc., 389 So. 2d 327 (Fla. 5th DCA 1980)
- Budagail S. Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980)
- Jackson v. State, 308 So. 2d 600 (Fla. 3d DCA 1975)
- Rosenwasser v. The Honorable John Smith, 308 So. 2d 600 (Fla. 3d DCA 1975)
- N. Dade Sec. Ltd. Corp. v. Dep't of State, 530 So. 2d 1040 (Fla. 1st DCA 1988)
- Copeland v. Cap. Bank OF Miami, 372 So. 2d 1149 (Fla. 3d DCA 1979)
- Daniels v. State, 575 So. 2d 722 (Fla. 1st DCA 1991)