CEDRICK JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In a criminal appeal where the voir dire transcript was lost due to computer error, the court held that the defendant must identify a specific, prejudicial error to warrant a new trial, rather than merely noting that the missing record prevents review of potential errors. The defendant's inability to point to particular erroneous rulings during jury selection was insufficient to require reversal.
The court held that under existing precedent (Darling v. State, Burgess v. State, and Velez v. State), the defendant must demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue. Merely stating that the omission prevents knowledge of whether errors occurred is insufficient; the defendant must point to a specific trial court decision that would show reversible error.
[1] A new trial is not automatically required due to an incomplete appellate record when the defendant cannot identify a specific, identifiable issue that would constitute re…
[2] An appellate court is bound by precedent requiring a defendant to demonstrate specific prejudice resulting from an incomplete record to warrant a new trial.
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“Under existing law by which we are bound, defendant has failed to demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue in his appeal. It is not enough to say that as a result of the omission we do not know whether any error occurred, and therefore a new trial is required.”
The court's core holding that a defendant cannot obtain reversal merely by showing a record is incomplete; he must identify specific prejudicial error.
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Join FLexlaw to unlock all legal intelligenceCedrick Jones appealed his criminal conviction, but the voir dire transcript was unavailable due to a computer error. The trial court was asked to rec…
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FARMER, C.J.
The voir dire transcript in this criminal appeal is not available because of a computer error. We therefore granted defendant’s motion to relinquish jurisdiction to the trial court to reconstruct the record, if possible. Being fully advised, the trial court found the record could not be reconstructed, but noted that defendant had used only three peremptory challenges.
Defendant argues that a new trial must be granted as a matter of law because the record is incomplete and his appellate counsel is therefore unable to determine whether any prejudicial errors occurred during jury selection. Jones concedes he “does not know if errors occurred in voir dire.” The State argues that Burgess v. State, 766 So. 2d 293 (Fla. 4th DCA 2000), governs the outcome of this issue on appeal.
In Burgess, we relied on our earlier holding in Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994), and denied a new trial because defendant had “not identified any prejudicial error that occurred during the voir dire.” 766 So. 2d at 293-94. We explained: “Appellant does not contend that the trial court incorrectly instructed the jurors. Appellant does not argue that he was forced to accept any juror who said that he or she would like to hear him testify. Appellant used only two of the six peremptory challenges he had available; any objection to a failure to excuse jurors for cause was not preserved. E.g., Kearse v. State, 662 So. 2d 677, 683 (Fla.1995) (finding that in order to preserve challenge for cause “a defendant must exhaust all peremptory challenges.”) Unlike Delap v. State, 350 So. 2d 462 (Fla.1977), this was not a first degree murder case involving imposition of the death penalty, where the supreme court has a constitutional duty to review the entire record of the conviction and the sentence of death.”
766 So. 2d at 294. We should add that the facts as to this issue, and the argument, in Burgess are indistinguishable from this case.
Appellate counsel for defendant urges that we adopt a categorical rule. Her contention is that the State has a duty to furnish a complete transcript, in order that review of criminal convictions can be meaningful. She further contends that appellate counsel should not be bound by trial counsel’s inability to recall whether there was any arguable error in the selection of a jury — i.e., that defendant should not have to show that the omission disables him from arguing a specific, identifiable claim of error. In short counsel contends:
“[t]o the extent that Burgess and Velez can be read to require appellant to show prejudicial error occurred in a part of the proceedings for which no appellate record exists, they must be wrongfully decided.”
Reply Brief, at 10.
As it happens, however, we are not free to adopt the rule counsel urges. In Darling v. State, 808 So. 2d 145 (Fla.2002), a death penalty case — we pointedly note— the supreme court relied on our Velez holding to deny a defendant’s claim that the absence of certain pretrial hearing records preclude meaningful review. Darling emphasizes that the failure to demonstrate a specific prejudice made this claim insufficient. 808 So. 2d. at 163.
Under existing law by which we are bound, defendant has failed to demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue in his appeal. It is not enough to say that as a result of the omission we do not know whether any error occurred, and therefore a new trial is required. A new trial would be required under Darling-Burgess-Velez only if Jones could point to a specific decision by the trial judge that he would use to show reversible error. We affirm on all other issues as well.
GUNTHER and GROSS, JJ., concur.
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Cedrick Jones v. State, 923 So. 2d 486 (Fla. 2006)…The Fourth District held that Jones was not entitled to a new trial because he “failed to demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue in his appeal.” Jones v. State, 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, 3…1 / 2
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Osberto DeJesus Vargas v. State, 902 So. 2d 166 (Fla. 3d DCA 2004)…reversible error was committed during” the unreported portion of the trial), review denied, 689 So. 2d 1072 (Fla.1997). However, we believe and certify to the Supreme Court that this result is in direct conflict with the holding in Jones v. State, 870 So. 2d 904 (Fla. 4th DCA 2004), review granted, 884 So. 2d 22 (Fla.2004),-that the omission of portions of the voir dire from the record did not in itself require a new trial and, that, to the contrary, a particularized claim of at least' potential error is ne…1 / 2
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Terry v. State, 263 So. 3d 799 (Fla. 4th DCA 2019)…rejudicial error occurred during jury 1 State v. Neil, 457 So. 2d 481 (Fla. 1984); State v. Slappy, 522 So. 2d 18 (Fla. 1988). 8 selection. Id. at 488. We rejected that argument, relying in part on Darling and Velez. See Jones v. State, 870 So. 2d 904, 905 (Fla. 4th DCA 2004). After analyzing a series of its decisions confronting issues of appellate review where transcripts were missing or unavailable, on further review our supreme court said: “It is therefore clear that under our precedent,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dolan Darling v. State, 808 So. 2d 145 (Fla. 2002)
- Kearse v. State, 662 So. 2d 677 (Fla. 1995)
- Delap v. State, 350 So. 2d 462 (Fla. 1977)
- Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994)
- Burgess v. State, 766 So. 2d 293 (Fla. 4th DCA 2000)