Opinion
1D22-1490
05-10-2023
Kadeem Cordale Debose, Appellant, v. State of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
On appeal from the Circuit Court for Alachua County. David P. Kreider, Judge.
Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
ON A MOTION FOR REHEARING AND CERTIFICATION
KELSEY, J., dissenting.
Respectfully but firmly, I am unable to join the majority opinion or approve its reasoning. Before the Court was an appellate lawyer's simple-and unopposed-motion to supplement the record with a few exhibits that had been omitted, and copies of three transcripts that trial counsel had not designated for inclusion at the outset. The transcripts covered important events: a competency hearing, a plea hearing, and a sentencing hearing. The motion to supplement was fully authorized under Florida Rule of Appellate Procedure 9.200(f). It did not violate any procedural rule or any published court decision.
Appellant's counsel did not identify the nature of the requested transcripts in the original motion to supplement (and there is no rule requiring that level of specificity), but did so in the motion for rehearing. Under Florida Rule of Appellate Procedure 9.140(b)(2)(B)(i)(b), plea and sentencing transcripts are mandatory contents of records on appeal in cases involving a plea of guilty or nolo contendere, as this case does.
Before filing the unopposed motion to supplement the record, Appellant's counsel took the automatic 60-day extension of time available under our Administrative Order 19-2 (similar to orders that all of the district courts of appeal have adopted). We readily granted the extension of time, unconditionally. Then, on the very last day of the extension, Appellant's counsel moved to supplement the record-also fully authorized and not contrary to precedent. That motion had a tolling effect, so nothing else has happened in this appeal, which again is the natural operation of the rules and not improper. As I indicated in my original dissent, however, sometimes following available procedures can be less than best practice under the rules of attorney ethics. I stopped there and would still stop there.
Now, however, the majority has rendered, and the Court has published, a decision on an unprecedented issue that the majority injected sua sponte. The decision purports to create a new exception to rule 9.200(f) not apparent on the face of the rule or in any decision interpreting or applying the rule. The opinion holds that there is no right to supplement the record with a transcript if appellate counsel has not first independently (majority's emphasis) arranged for payment of the associated expense or obtained the transcript in some free manner.
Appellant moved for rehearing and rehearing en banc, and for certification of conflict and of a question of great public importance, which the court denied by published order. The Court's Internal Operating Procedures dealing with en banc proceedings are collected in Section 6. The IOPs are posted at www.1dca.flcourts.gov, under "Resources," "General Information," and then "Internal Operating Procedures."
My dissent arises from four factors. First, the majority opinion infringes on the Florida Supreme Court's exclusive rulemaking authority. Second, the opinion violates concepts of preservation and judicial restraint. Third, by originating and pursuing an unpreserved and tangential issue, the majority initiated a process resulting in delay, and has unnecessarily consumed precious judicial resources better devoted to preserved and dispositive issues in other cases. Fourth, the opinion implicitly raises and leaves unresolved significant procedural questions such as the precedential effect of its holding and the practical steps necessary to implement it.
1. Unauthorized Rulemaking.
Only the Florida Supreme Court has rulemaking authority for the state court system. Art. V, § 2(a), Fla. Const. The Florida Rules of Appellate Procedure, duly promulgated under the supreme court's exclusive authority, "shall govern" all proceedings in the supreme court and the district courts of appeal. Fla. R. App. P. 9.010. Absolutely nothing in the appellate rules, in the comments on the rules, or in caselaw, requires, authorizes, or supports the majority's rationale or action. The supreme court controls the process of amending the rules, and we have no authority to infringe on the supreme court's exclusive jurisdiction.
As Judge Tanenbaum has noted previously, if the public defenders take issue with a court-created rule, they have remedies available before the Florida Supreme Court and its rule-making process:
I close by noting that the public defender is not without a legal remedy to challenge the scope or effect of an administrative order to the extent it affects her or her office. If she views an administrative order as improperly operating as if it is a court rule or a local rule, she may apply to the Supreme Court Local Rules Advisory
Committee for a determination. See Fla. R. Gen. Prac. &Jud. Admin. 2.215(e)(2). If she instead views the chief judge as having exceeded his authority in issuing the administrative order at all, she may petition the supreme court directly. See Art. V, § 3(b)(8), Fla. Const. (giving the supreme court the authority to "issue writs of mandamus and quo warranto to state officers and state agencies"); see also Fla. R. Gen. Prac. &Jud. Admin. 2.215(b)(2) ("The chief judge shall be responsible to the chief justice of the supreme court.").Yeary v. Chief Judge of Second Jud Cir, 354 So.3d 581, 585 (Fla 1st DCA 2022) (Tanenbaum, J, concurring in result), review denied, SC23-0236, 2023 WL 2923064 (Fla. Apr. 13, 2023).
Directly contrary to the supreme court's exclusive rulemaking authority, the majority purports to create an exception to the right of supplementation under rule 9.200(f), making that right contingent on counsel's having already obtained and paid for requested transcripts in some way other than through the budget of the public defender handling the appeal. The majority's interpretation runs afoul of the principle that the unambiguous language of a rule, like that of a statute, "must be accorded its plain and ordinary meaning." Brown v. State, 715 So.2d 241, 243 (Fla. 1998).
Rule 9.200(f) is clear and unambiguous. On its face, it contains no exception for publicly funded transcripts. No comment, commentary, or judicial decision injects a payment issue. Yet the majority sua sponte raises that issue under the guise of protecting the (unasserted) financial interests of non-parties, such as the Public Defenders of the Second and Eighth circuits, the relevant state attorneys' offices, offices of regional conflict counsel, the Justice Administrative Commission, sections of the Florida Bar, attorneys' practice groups, and the Appellate Court Rules Committee. If a change in the appellate rules is necessary, it should be done only through proper procedures-under supreme court authority and through the Rules Committee, where all interested groups can be heard. Further, as the statutory citations in the majority opinion on rehearing reveal, the Florida Legislature controls funding as appropriate within the affected offices, and could address any funding-related issues if a rule change required it. These issues fall within the purview of the supreme court and the Legislature. This Court has no authority to make this new law.
2. Preservation/Judicial Restraint.
In the past, this Court has consistently affirmed and adhered to the principle that we will not address issues that the parties have not raised and argued. See, e.g., Rosier v. State, 276 So.3d 403, 406-07 (Fla. 1st DCA 2019) (en banc) ("An appellate court is 'not at liberty to address issues that were not raised by the parties.' . . . Nor may an appellate court 'depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.'") (cleaned up; first quoting Anheuser-Busch Co., Inc. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013); and then quoting Polyglycoat Corp. v. Hirsch Distribs., Inc. 442 So.2d 958, 960 (Fla. 4th DCA 1983)); State v. Barati, 150 So.3d 810, 814 (Fla. 1st DCA 2014) ("[T]his court . . . should not place a higher value on the rendition of a volunteered advisory opinion than on the virtues of judicial restraint.") (cleaned up; quoting Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 462 (1985)); Pomales v. Aklipse Asset Mgmt., Inc., 336 So.3d 785, 788 (Miller, J., dissenting) (quoting Barati and explaining "appellate courts must zealously guard against" valuing a volunteered opinion over judicial restraint); see also I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007) (rejecting practice of court's injecting new issues because it means parties "must not only respond to the specific reasons for reversal advanced by the [opposing party] but also anticipate and respond to other reasons for reversal that may be advanced by the reviewing court.").
This principle is foundational to our limited role. The Florida Supreme Court confirms it. Bainter v. League of Women Voters of Fla., 150 So.3d 1115, 1126 (Fla. 2014) ("'Basic principles of due process'-to say nothing of professionalism and a long appellate tradition-'suggest that courts should not consider issues raised for the first time at oral argument' and 'ought not consider arguments outside the scope of the briefing process.'") (quoting Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013)). That foundational limitation notwithstanding, the majority injected and ruled on a tangential issue that purports to create a new exception to rule 9.200(f) and make new law for our district (or more). No party raised the payment issue as a limitation on rights under rule 9.200(f). The State never asserted any objection to the motion to supplement; and although invited to do so, did not respond to our order to show cause on the motion. The State did not oppose or otherwise respond to Appellant's motion for rehearing, rehearing en banc, certification of conflict, and certification of a question of great public importance. The majority ought not take on the role of State's counsel and assert issues counsel did not raise and still has not raised. See, e.g., Rosier, 276 So.3d at 406-07 (emphasizing repeatedly the necessity that parties preserve specific issues and arguments as a prerequisite to our addressing them); Polyglycoat Corp., 442 So.2d at 960 ("This Court will not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.").
3. Court Resources and Delays.
Unfortunately, by injecting these issues, the majority set off a process that has delayed progress toward disposition in this case and others presenting the same issue. By doing so within a pending case rather than through a hypothetical administrative order ("hypothetical" since I maintain we lack authority to do even that), the rehearing process to which the parties are entitled-and which has a tolling effect under rule 9.300(b)-has had the anomalous effect of granting an extension of time longer than would probably have occurred if we had simply granted supplementation as we always have before. We are consuming judicial resources better devoted to meritorious issues preserved for our consideration and raised by parties before us. As stewards of judicial time, we ought to be aware always of how judicial restraint dovetails with timeliness. See, e.g., Murphy v. Murphy, 342 So.3d 799, 806 (Fla. 1st DCA 2022) (Makar, J., dissenting) (stating he was dissenting only very briefly because "[t]his straightforward appeal of an order exercising jurisdiction over a former husband in a dispute over his military pension has been pending in this Court for over two years"); Collier v. Collier, 343 So.3d 183, 189-90 (Fla. 1st DCA 2022) (Makar, J., concurring in result only) (decrying, in three-years-pending case, practice of "drain[ing] scarce judicial resources excessively" because it "diverts judicial labor from other pending cases and creates unnecessary delays").
4. Precedential Value and Implementation.
The majority opinion raises practical issues that are left unaddressed. If the new rule is that supplementation under rule 9.200(f) is not available when transcription will require expenditure of public funds, how do we determine when that is the case? Does counsel moving for supplementation under rule 9.200(f) have to attest that the requested supplements have already been obtained at no expense to the public? Can that be a mere assertion in the motion, or is a sworn statement required? Is authenticated documentation or an evidentiary hearing necessary? Must we remand for appointment of a magistrate to act as an officer of this Court, conduct an evidentiary hearing, and report back to us with a supplemental record on those proceedings?
This new rule also raises precedential questions. Does this decision bind all future panels of this Court? See Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980) ("The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Supreme] Court."). Does the majority decision prevent trial courts statewide from authorizing transcription at public expense for the purpose of supplementing records on appeal? See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").
In that regard, I note that to date no other district court has adopted the majority's unprecedented ruling, although the Fifth District inherited one of our cases involving the identical issue when it gained appellate jurisdiction over the Fourth Circuit's cases as of January 1, 2023. The case was Brown v. State, Duval County Circuit Court Case No. 16-2019-CF-000578-our case number 1D22-326 and the Fifth District's case number 5D23-56. In Brown, we had issued the same order we issued here requesting the appellant's response about the supplementation issues, and the same lawyer representing Debose here filed the same response in Brown. The case migrated to the Fifth District before we took any further action. Diametrically opposite from the majority's ruling here, the Fifth District merely granted the motion to supplement. Of course, our opinions are merely persuasive as to the other districts. See Pardo, 596 So.2d at 667.
Conclusion.
This all seems far too much for a routine and unopposed motion to supplement the record in which no party raised the majority's injected issue. Fundamentally, we have no authority to create an exception to rule 9.200(f). Further, loading this issue on the back of a pending case has delayed processing of this and many other cases. The time consumed (and yet to be consumed) by this issue could have been directed to legitimately presented issues-that we have authority to address-in other cases. I must therefore respectfully dissent.