Opinion
Case No. 2D04-3938.
Opinion filed April 21, 2006.
Appeal from the Circuit Court for Hillsborough County, Manuel Menendez, Jr., and Richard A. Nielsen, Judges.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
T.J.A., a juvenile, seeks review of three orders in three separate cases adjudicating him delinquent and committing him to a residential program. We reverse because the absence of the transcript of the adjudicatory hearing precludes a complete review of this case.
In case number 03-2101, the State charged T.J.A. with a violation of probation on his adjudication for possession of cannabis. The affidavit of violation charged that T.J.A. violated probation by committing the offense of possession of cocaine as charged in case number 03-5674. In case number 03-5674, the State charged T.J.A. with possession of cocaine based on an incident on July 25, 2003. T.J.A. filed a motion to dismiss, alleging that the State could not prove that he had constructive possession of the baggie of cocaine that formed the basis of the charges against him. It appears from the case progress report that the court considered the motion at a hearing on November 13, 2003, but the record does not contain a transcript of that hearing. In case number 04-1223, the State charged T.J.A. with sale or delivery of cocaine within 1000 feet of a school and possession of cocaine with intent to deliver within 1000 feet of a school based on an incident on February 28, 2004.
The evidence data sheet reveals that Judge Menendez conducted a single adjudicatory hearing on all of the charges on June 14, 2004. The orders adjudicating T.J.A. delinquent reflect that he did not enter a plea but was adjudicated delinquent based on evidence presented to the court. As was stated above, the record does not contain a transcript of the adjudicatory hearing, and T.J.A.'s counsel has certified that he cannot locate that transcript.
On July 27, 2004, Judge Nielsen conducted a disposition hearing at which he adopted the Department of Juvenile Justice's recommendation that T.J.A. be committed to a moderate risk residential program with special conditions of supervision. In case number 03-2101, T.J.A. was committed for one year. In case number 03-5674, T.J.A. was committed for five years or until T.J.A.'s twenty-first birthday. In case number 04-1223, T.J.A. was only adjudicated for one count of sale of cocaine. He was committed for fifteen years or until his twenty-first birthday. The record does contain a transcript of the disposition hearing.
The public defender filed a notice of appeal but did not file a statement of judicial acts to be reviewed. Appellate counsel filed briefs asserting that there were no issues of arguable merit pursuant to Anders v. California, 386 U.S. 738 (1967), and In re Anders Briefs, 581 So. 2d 149 (Fla. 1991). Our review of the record on appeal revealed the absence of the transcript of the adjudicatory hearing. Because both this court and counsel for T.J.A. have a duty in Anders cases to conduct a complete review of the record, we issued an order striking the Anders briefs, requiring T.J.A.'s counsel to attempt to procure the transcript, and requiring rebriefing thereafter.
T.J.A.'s counsel filed supplemental directions to the clerk but was ultimately unable to supplement the record with the transcript of the adjudicatory hearing. T.J.A.'s counsel subsequently filed a merits brief arguing that T.J.A. was denied his right to an effective appeal based on the missing hearing transcript and requesting reversal for a new adjudicatory hearing. T.J.A.'s counsel noted that this court has the authority to order the parties and court to attempt to reconstruct the record, see Fla.R.App.P. 9.200(b)(4), but argued that this attempt would be futile in light of the amount of time that had lapsed since the adjudicatory hearing.
We agree that the twenty-one months that have elapsed since the date of the adjudicatory hearing would frustrate reconstruction efforts at this time. See, e.g., Simmons v. State, 200 So. 2d 619, 621 (Fla. 1st DCA 1967) (declining to remand for reconstruction based on the length of time that had elapsed since trial and reversing for a new trial instead). Furthermore, the judicial effort and resources a reconstruction would take would be equal to, if not greater than, the effort required for a new adjudicatory hearing.
We also agree that T.J.A. was denied his right to an effective appeal due to the absence of the transcript of the adjudicatory hearing. It has been the practice of this court to reverse for a new adjudicatory hearing when the transcript of the hearing is missing from the record and reconstruction is not possible.L.I.B. v. State, 811 So. 2d 748, 748 (Fla. 2d DCA 2002);M.R.G. v. State, 576 So. 2d 1378, 1378 (Fla. 2d DCA 1991). In so holding, this court has relied on the Florida Supreme Court's decision in Delap v. State, 350 So. 2d 462 (Fla. 1977), in which the supreme court granted a motion for new trial based on the absence of transcripts. L.I.B., 811 So. 2d at 748;M.R.G., 576 So. 2d at 1378.
Delap was a first-degree murder case in which the death penalty was imposed. 350 So. 2d at 463. The missing transcripts were from the jury charge conferences, jury charge in the trial and penalty phases, voir dire, and closing arguments of counsel in the trial and penalty phases. The supreme court held that it had no alternative but to remand for new trial because it was statutorily required to review the entire record in death penalty cases and "the omitted requested portions of the transcript are necessary to a complete review." Id. at 463 n. 1.
In addition to our decisions in L.I.B. and M.R.G., this court has relied on Delap to support reversal for a new trial based on missing or incomplete transcripts numerous times. See, e.g., Jackson v. State, 851 So. 2d 837, 837 (Fla. 2d DCA 2003) (missing a sentencing hearing transcript); Jones v. State, 780 So. 2d 218, 219 (Fla. 2d DCA 2001) (missing the State's closing argument); McKenzie v. State, 754 So. 2d 851, 852 (Fla. 2d DCA 2000) ("the record is riddled with gaps and `inaudible' notations"); Hardman v. State, 744 So. 2d 1183, 1184 (Fla. 2d DCA 1999) (missing the entire trial transcript); Bogdanowicz v. State, 744 So. 2d 1155, 1155 (Fla. 2d DCA 1999) (missing the transcript of the dispositive motion to suppress). However, the continued applicability of Delap for this purpose has recently been called into question in Jones v. State, 31 Fla. L. Weekly S145 (Fla. Mar. 2, 2006).
In Jones, Jones was convicted of two counts of battery on a law enforcement officer and one count of resisting arrest without violence. Id. at S145. Jones' counsel filed a motion to relinquish jurisdiction because the transcript of voir dire was not available. After the trial court determined that the record could not be reconstructed, Jones argued that he was entitled to a new trial on this basis. The Fourth District rejected this argument based on its conclusion that Jones conceded that he was not aware of any errors that had occurred at voir dire. The Fourth District explained that Jones was required to point to a "specific, identifiable issue in his appeal" in order to merit reversal for a new trial. Id. at S146 (quoting Jones v. State, 870 So. 2d 904, 905 (Fla. 4th DCA 2004)).
The supreme court approved the Fourth District's decision, holding that "this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant." Id. at S146. In support of its holding, the court relied on its prior decisions in Johnson v. State, 442 So. 2d 193 (Fla. 1983);Ferguson v. Singletary, 632 So. 2d 53 (Fla. 1993); Darling v. State, 808 So. 2d 145 (Fla. 2002); and Armstrong v. State, 862 So. 2d 705 (Fla. 2003), cert. denied, 541 U.S. 1056 (2004). In all of these decisions, the court held that relief was not required by the absence or incomprehensibility of a portion of the trial transcript.
The Jones court also distinguished its decision in Delap, 350 So. 2d at 463, noting that it granted the motion for new trial due to the fact that a "substantial portion" of the transcript was missing. Jones, 31 Fla. L. Weekly at S146. The court explained that the Delap court's decision was also based on the supreme court's duty to review the entire record on appeal in death penalty cases. Id.
Despite the apparent limitation of Delap as set forth inJones, we believe that Delap applies to this case for three reasons. First, while the Jones court did distinguish Delap, it did not expressly recede from its holding in Delap. Thus,Delap remains good law. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) ("this Court does not intentionally overrule itself sub silentio").
Second, as in Delap, a substantial portion of the transcript is missing in this case. In fact, the entire transcript of the adjudicatory hearing is missing. None of the cases cited by the supreme court in Jones involve a record missing a substantial portion of the trial transcript. This distinction has been made previously by the supreme court in denying relief based on a missing transcript. See Armstrong, 862 So. 2d at 721 ("while this Court did require a new trial on the basis of missing record in Delap, the record that was missing in Delap was far more significant than that allegedly missing here").
Third, our review in this case pursuant to Anders, 386 U.S. 738, and In re Anders Briefs, 581 So. 2d 149 (Fla. 1991), is comparable to the supreme court's review of death penalty cases, which was a basis for the court's holding in Delap. In Jones, Chief Justice Pariente authored a dissent in which she noted that the majority's decision poses special problems in Anders appeals:
In several cases arising out of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), this Court has discussed the importance of a complete record to both appointed counsel and the reviewing court. In In re Anders Briefs, 581 So. 2d 149 (Fla. 1991) . . . this Court stated:
The procedure established in Anders and its progeny requires an indigent's appellate counsel to "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. . . .
"Upon counsel's submission of the motion to withdraw accompanied by an Anders brief, the indigent must be given the opportunity to file a pro se brief. The appellate court then assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record. . . . [T]he appellate court is to conduct its full and independent review [of the record] even if the indigent elects not to file a pro se brief.
. . . Requiring the defendant to establish reversible error from an incomplete record may result in grave injustice and has particular potential to frustrate review in Anders cases.
31 Fla. L. Weekly at S147 (Pariente, C.J., dissenting). The absence of the entire transcript of the adjudicatory hearing makes it impossible to comply with our duty to conduct "a full and independent review of the record to discover any arguable issues apparent on the face of the record." See In re Anders Briefs, 581 So. 2d at 151. In fact, the absence of the transcript makes it impossible to conduct any sort of review of the adjudicatory hearing in this case.
We are troubled by the fact that T.J.A. challenged the basis for the possession of the cocaine in case number 03-5674, which also supported the violation of probation charge in case number 03-2101. We are also troubled by the fact that the court adjudicated T.J.A. delinquent for only one of the two counts charged in case number 04-1223 and that the order adjudicating T.J.A. delinquent lists the conviction for "sale of cocaine" and not sale of cocaine within 1000 feet of a school as charged. We have no way to discern the basis for the court's rulings on these matters because of the missing transcript of the adjudicatory hearing.
Based on the above analysis, we conclude that Delap remains good law to the extent that it supports reversal in this case based on the complete absence of the transcript of the adjudicatory hearing. Accordingly, we reverse and remand for a new adjudicatory hearing.
Reversed and remanded.
WHATLEY and SALCINES, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.