SHEPARD v. STATE (2021)

Appellee's motion to take judicial notice, filed April 5, 2021, is denied. See Levin v. State, 298 So. 3d 681, 682 (Fla. 1st DCA 2020) (confirming that record on appeal in certain appeals from orders denying postconviction motions is limited pursuant to rule 9.141(b)(2)(A) and cannot be supplemented beyond what the rule allows).

As Appellee has referred to case number 1D15-3836 repeatedly in the answer brief, the answer brief, filed April 5, 2021, is hereby stricken. Appellee shall file an amended answer brief without these references within 15 days of the date of this order.

It is often the case that the movant seeking to supplement the record on appeal in a summarily denied post-conviction case is the appellant, whose post-conviction motion was denied and whose appeal might benefit from having the appellate court consider all relevant documents. A panel of this Court in Levin v. State, 298 So. 3d 681, 682 (Fla. 1st DCA 2020), denied such a motion, concluding that only the documents specifically mentioned in Florida Rule of Appellate Procedure 9.141(b)(2)(A) (2020) may be considered.

It is sometimes the case, as in this matter, that the State is the movant, seeking to supplement the record on appeal via judicially-noticed documents in the appellant's direct appeal, claiming they are necessary to fully understand and adjudicate the claims presented. See, e.g., St. Cyr v. State, 126 So. 3d 1166, 1166 (Fla. 4th DCA 2012) (denying State's motion to supplement the record).

Levin requires denial of the State's motion to supplement the record in this case, but it bears emphasis that symmetry in an overly constrained application of Rule 9.141(b)(2)(A) seems to serve neither party's interest and works to deprive appellate courts of relevant information that may be helpful in processing a case expeditiously and fairly. Indeed, it has been frequently the case that both the appellant and the State have agreed or stipulated to supplementation of the appellate record in the interests of justice but been denied; that seems wrong.

Judge Warner, almost a decade ago, bemoaned a strict application of the rule. St. Cyr, 126 So. 3d at 1166 (“One would think that an appellate court should have available to it the actual sentencing documents any time it reviews the ruling on a motion to correct an illegal sentence. However, for reasons unknown to us, Florida Rule of Appellate Procedure 9.141(b)(2)(A) provides” to the contrary.). And Judge Bilbrey makes a compelling case for why the rule should not be read in isolation but in conjunction with other appellate rules designed to decide cases on the merits and not procedural technicalities. Partlow v. State, 285 So. 3d 399, 404 (Fla. 1st DCA 2019) (Bilbrey, J., concurring specially) (rejecting a “hyper-technical application of procedural rules”). Given the need for reform that would benefit appellants and the State, the “state and the criminal justice community should review and suggest an amendment to the rule on what constitutes the record on appeal in these cases, because the failure to include the sentencing documents as part of the record prevents a thorough review and probably results in unnecessary reversals.” St. Cyr, 126 So. 3d at 1167.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

BY ORDER OF THE COURT:

KELSEY and JAY, JJ., concur. MAKAR, J., concurs with opinion.