ELBERT QUINTON YANCEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Yancey appealed his robbery conviction challenging the trial court's jury instructions on insanity and the absence of a complete trial transcript. The Florida appellate court reversed and remanded for a new trial after the trial court certified it could not reconstruct the missing jury charge due to the death of the court reporter and trial defense attorney.
A defendant is entitled to a full transcript including the jury charge on appeal. When reconstruction of the missing jury instructions cannot be accomplished despite good faith effort by the trial court, the conviction must be reversed and the case remanded for a new trial.
[1] A party appealing from a trial court's final order may prepare a substitute statement of proceedings when no court reporter was present at trial.
[2] A party served with a substitute statement of proceedings must serve objections or proposed amendments thereto, rather than merely moving to strike the document.
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Join FLexlaw to unlock all legal intelligence“Defendant is entitled to a full transcript, including the jury charge.”
Establishes the fundamental right to complete transcripts on appeal
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Join FLexlaw to unlock all legal intelligenceYancey was convicted of robbery at trial. He defended on grounds of insanity. The transcript of jury instructions was unavailable because the court re…
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Defendant was convicted of robbery and appeals.
Defendant defended at trial on the grounds of insanity.
By his points on appeal, defendant charges that the trial court failed to instruct on the elements of insanity and, secondly, complains about the failure of the state to provide a complete transcript of the trial proceedings.
The transcript of the instructions given to the jury is not available due to the death of the court reporter and disappearance of his notes. It is further suggested that, even if they should be found, same would be indecipherable due to the reporter’s unique style.
The defendant has proceeded in timely fashion and has not contributed to the state’s inability to furnish a complete transcript.
Defendant is entitled to a full transcript, including the jury charge. Hardy v. United States, 1964, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331; United States v. Atilus, 5th Cir. 1970, 425 F.2d 816.
While there is an indication that some effort has been heretofore made to obtain a substitute, agreed or reconstructed record, the effort was not conclusive as we view it. See Rule 6.9(d) and 6.7(f), Florida Appellate Rules, 32 F.S.A., and Thomas v. State, Fla.App.1964, 160 So.2d 119.
We feel thatt he ends of justice will be served by a relinquishment of our jurisdiction to the trial court for a period of 30 days with instructions. We respect*837fully instruct that a determined effort be made by counsel and court to reconstruct the jury charges actually given, same to be accomplished within the limits of reasonable accuracy. Bennett v. State, Fla.App. 1967, 196 So.2d 449.
On pr before the expiration of 30 days we instruct that said reconstructed record be filed with the Clerk of this Court. If said reconstructed record cannot be furnished, we ask that a certificate to that effect be filed within the same period. In the latter event it will be our expectation to reverse the defendant’s conviction and remand for a new trial. Simmons v. State, Fla.App. 1967, 200 So.2d 619, and Bennett v. State, Fla.App. 1967, 196 So.2d 449.
It is so ordered.
OWEN, J., and BEASLEY', THOMAS D., Associate Judge, concur.
SUPPLEMENTAL OPINION
Pursuant to our opinion in this case, the trial judge has certified to us the following :
“CERTIFICATE
The undersigned trial judge hereby certifies that due to the death of the court reporter and the death of the defense attorney representing the above named Defendant at time of trial, an accurate reconstructed record cannot be furnished as requested by Order of the entitled Court.
/s/ Warren H. Edwards, Judge.”
In light of this, the judgment here appealed is reversed and the cause remanded for a new trial.
Reversed and remanded.
WALDEN and OWEN, JJ., and BEASLEY, THOMAS D., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Jackson v. State, 308 So. 2d 600 (Fla. 3d DCA 1975)…and sentence here under review be and the same is hereby set aside, and the appellant is remanded to the trial court for the purposes of being accorded a new trial. See: Simmons v. State, Fla.App.1967, 200 So. 2d 619; Yancey v. State, Fla.App. 1972, 267 So. 2d 836; Fernandez v. State, Fla.App.1974, 292 So. 2d 410; Dismukes v. State, Fla.App.1974, 299 So. 2d 133.…
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Felton v. State, 523 So. 2d 775 (Fla. 3d DCA 1988)…However, in the event that, after determined efforts of the trial participants, reconstruction of the trial is found to be impossible, the trial court should so certify to this court in a manner similar to that of the trial court in Yancey v. State, 267 So. 2d 836, 837 (Fla. 4th DCA 1972) (supplemental opinion). Upon receipt of such certification, the final judgment of conviction and sentence under review shall be reversed and the cause remanded to the trial court for a new trial. Simmons v. State, 200 So. 2d…
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Roper v. State, 341 So. 2d 523 (Fla. 3d DCA 1976)…opriate affidavits, they have demonstrated that this cannot be done. Therefore, the order of revocation here under review be and the same is hereby set aside and vacated. See: Simmons v. State, 200 So. 2d 619 (Fla. 1st D.C.A.1967); Yancey v. State, 267 So. 2d 836 (Fla.4th D.C.A.1972); Fernandez v. State, 292 So. 2d 410 (Fla.3rd D.C.A.1974); Dismukes v. State, 299 So. 2d 133 (Fla.3rd D.C.A.1974). Reversed and remanded for a new hearing on the affidavit of violation of probation.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardy v. United States, 375 U.S. 277 (U.S. 1964)
- Harris v. Jewett, 200 So. 2d 619 (Fla. 3d DCA 1967)
- Simmons v. State, 200 So. 2d 619 (Fla. 1st DCA 1967)
- Thomas v. State, 160 So. 2d 119 (Fla. 2d DCA 1964)
- United States v. Atilus, 425 F.2d 816 (5th Cir. 1970)
- Atl. Coast Line R.R. Co. & Seaboard Air Line R.R. Co. v. Braz, 196 So. 2d 449 (Fla. 3d DCA 1967)
- Bennett v. State, 196 So. 2d 449 (Fla. 1st DCA 1967)