ANDRE H. ROZIER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the loss of voir dire notes prevents meaningful appellate review, requiring a new trial.
Appellant was convicted of burglary, grand theft, and possession of burglary tools. The court reporter's notes from the voir dire portion of the trial…
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PER CURIAM.
Andre H. Rozier appeals his convictions of burglary of a conveyance, grand theft, and possession of burglary tools. We vacate the convictions and remand for a new trial.
The court reporters involved have certified that the notes from the voir dire portion of the trial are lost and accordingly, no transcript of that part of the trial was prepared. This court appointed the Honorable Gerald J. Klein as Commissioner to inquire into the circumstances. After conducting a hearing, Judge Klein reported that the voir dire transcription notes could not be located and that the voir dire portion of the trial could not be reconstructed. He therefore recommended that a new trial be awarded.
The State argues that a sufficient record for appellate review can be obtained based on the trial minutes of jury selection. In this case peremptory challenges were exercised by both sides. We have carefully considered the State’s argument, but conclude that the trial minutes do not contain sufficient detail to allow meaningful appellate review. We agree with the recommendation of Judge Klein, and order a new trial. See Fairell v. State, 662 S.2d 428 (Fla. 3d DCA 1995); Jackson v. State, 308 So. 2d 600 (Fla. 3d DCA 1975); see also Delap v. State, 350 So. 2d 462 (Fla.1977).
In the event that defendant is convicted upon retrial, we point out that any resentencing must be within the legal maximum. The State concedes that defendant’s twelve-year sentences as a habitual offender exceed the applicable ten-year legal maximum for third degree felonies. See § 775.084, Fla.Stat. (1989).
Reversed and remanded.
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Cedrick Jones v. State, 923 So. 2d 486 (Fla. 2006)…e, 870 So. 2d 904, 905 (Fla. 4th DCA 2004). Under comparable circumstances, the Third District has ordered a new trial in several cases, including the conflict decision in Vargas v. State, 902 So. 2d 166 (Fla. 3d DCA 2004). See also Rozier v. State, 669 So. 2d 353, 353 (Fla. 3d DCA 1996). In Vargas, the court, considering itself bound by Rozier, granted a new trial although the defendant relied only on the fact that the possibility of reversible error during the missing proceedings could not be “totally elimi…1 / 2
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Blasco v. State, 680 So. 2d 1052 (Fla. 3d DCA 1996)…d DCA 1975)(ordering a new trial where appellant was unable to secure trial testimony from the court reporter and the parties were unable to reconstruct the record after a diligent effort as attested to by the trial court); see also Rozier v. State, 669 So. 2d 353 (Fla. 3d DCA 1996)(holding that where the voir dire transcription notes could not be located and this portion of the trial could not be reconstructed, a new trial had to be ordered where it was clear that peremptory challenges had been exercised by…1 / 2
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Osberto DeJesus Vargas v. State, 902 So. 2d 166 (Fla. 3d DCA 2004)…that one occurred cannot be totally eliminated in the absence of an appropriate record,1 we grant the motion and hereby order a new trial. We consider that this result is required by our previous decision, by which we are bound, in Rozier v. State, 669 So. 2d 353, 353 (Fla. 3d DCA 1996). Rozier specifically holds as follows: [*167] The court reporters involved have certified that the notes from the voir dire portion of the trial are lost and accordingly, no transcript of that part of the trial was prepared.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delap v. State, 350 So. 2d 462 (Fla. 1977)
- 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)