LESTER ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a criminal conviction because the trial transcript was incomplete, missing testimony from two key state witnesses and the jury charge. The trial court found it impossible to reconstruct the missing testimony and objections, necessitating a new trial.
Yes. The court reversed the conviction and remanded for a new trial because the missing testimony of key state witnesses and the jury charge could not be adequately reconstructed, rendering the transcript insufficient for appellate review.
[1] A court may order a show cause hearing for a court reporter's failure to file a complete transcript.
[2] A court may relinquish jurisdiction to the trial court to determine if missing portions of a transcript can be reconstructed.
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Join FLexlaw to unlock all legal intelligence“Ms. Superior testified that her notes of the two witnesses, Tate and Datz, were accidentally thrown away by her mother who has Alzheimer's disease. She did not have a satisfactory explanation as to why the jury charge was not transcribed, and from her testimony and the testimony of Jennifer Gaul of Esquire Deposition Services, the court concludes that there is no explanation other than the court reporter's inattention and negligence in taking down the testimony at trial as to the missing charge.”
Establishes the factual basis for the court reporter's failure and the court's finding of negligence regarding the missing transcript portions.
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Join FLexlaw to unlock all legal intelligenceRoberts was convicted after a twelve-day trial and filed a notice of appeal in September 1998. The court reporter, Linda Superior, filed an incomplete…
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PER CURIAM.
Appellant, who was convicted after a twelve day trial and is in custody, filed his notice of appeal in September, 1998. After obtaining a number of extensions of time, the court reporter filed what she represented to be a complete transcript, but counsel for appellant discovered that the testimony of two witnesses for the state and the jury charge had not been included. This court then entered an order to show cause as to why the court reporter, Linda Superior, who was provided by Esquire Deposition Services, Inc., to report the trial in this case, should not be held in contempt for failure to file a complete transcript.
After Superior appeared at a hearing before this court, this court entered an order, stating in part: At the hearing on the order to show cause, the Public Defender and the Assistant Attorney General noted that the testimony of two witnesses and the jury charge given by the court were not transcribed. Ms. Superior testified that her notes of the two witnesses, Tate and Datz, were accidentally thrown away by her mother who has Alzheimer’s disease. She did not have a satisfactory explanation as to why the jury charge was not transcribed, and from her testimony and the testimony of Jennifer Gaul of Esquire Deposition Services, the court concludes that there is no explanation other than the court reporter’s inattention and negligence in taking down the testimony at trial as to the missing charge.
The Public Defender and Assistant Attorney General both agree that before this court reverses this case, because the transcript is incomplete, see Delap v. State, 350 So. 2d 462 (Fla.1977), the state should be afforded an opportunity to determine whether the missing portions of the transcript can be reconstructed so that the transcript is considered sufficient for appellate review. Both parties have noted that the missing testimony and charge conference are essential to an appeal....
The Court relinquishes jurisdiction to the original trial court judge, Judge Robert Carney to determine whether the missing portions of the record, namely the testimony of the two witnesses and the jury charge, can be adequately reconstructed. Because this case has already been pending on appeal for over a year and a half, without the record being complete, this Court is limiting the relinquishment period to 30 days from this order. Pursuant to our order, the trial court conducted a hearing and found that it was “impossible to reconstruct the missing testimony of the state’s key witness co-defendant Tate and the fingerprint examiner Datz.” The trial court also observed that there were extensive objections during the testimony of those witnesses which could not be reconstructed.
The state is in agreement with the appellant that a new trial is required under Delap. We therefore reverse the conviction and remand for that purpose.
WARNER, C.J., KLEIN and TAYLOR, JJ., concur.
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Aniel Vilsaint v. State, 890 So. 2d 1293 (Fla. 3d DCA 2005)…trial must be ordered. See, e.g., Delap v. State, 350 So. 2d 462 (Fla.1977); A.B. v. State, 816 So. 2d 1269 (Fla. 3d DCA 2002); Murphy v. State, 789 So. 2d 1235 (Fla. 3d DCA 2001); Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001); Roberts v. State, 766 So. 2d 443 (Fla. 4th DCA 2000); Hunt v. State, 719 So. 2d 394 (Fla. 3d DCA 1998); Swain v. State, 701 So. 2d 675 (Fla. 3d DCA 1997); Rozier v. State, 669 So. 2d 353 (Fla. 3d DCA 1996); Blasco v. State, 680 So. 2d 1052 (Fla. 3d DCA 1996); Fairell v. State, 662…
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Murphy v. State, 789 So. 2d 1235 (Fla. 3d DCA 2001)…So. 2d 462 (Fla.1977); Blasco v. State, 680 So. 2d 1052 (Fla. 3d DCA 1996), review denied, 689 So. 2d 1072 (Fla.1997); accord, Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001); McKenzie v. State, 754 So. 2d 851 (Fla. 2d DCA 2000); Roberts v. State, 766 So. 2d 443 (Fla. 4th DCA 2000); Bogdanowicz v. State, 744 So. 2d 1155 (Fla. 2d DCA 1999); Rozier v. State, 669 So. 2d 353 (Fla. 3d DCA 1996); Fairell v. State, 662 So. 2d 428 (Fla. 3d DCA 1995); Felton v. State, 523 So. 2d 775 (Fla. 3d DCA 1988); Simmons v. St…
Authorities Cited
- Delap v. State, 350 So. 2d 462 (Fla. 1977)