HARLEY v. STATE (2021)

Appellant contends that he was improperly denied jail credit for 140 days that he spent in Florida State Hospital in Chattahoochee during his incarceration. The trial court denied Appellant's motion for jail credit, noting that Appellant had unsuccessfully raised this issue previously. See Fla. R. Crim. P. 3.801(d) (“No successive motions for jail credit will be considered.”).

However, the trial court did not designate the earlier order denying relief as an attachment to the new order on appeal, and did not attach that order or any other documents showing that the issue had been raised previously and determined to be meritless. See Fla. R. Crim. P. 3.801(e) (incorporating portions of rule 3.850, including subsection (f)); Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”).

The State moved to supplement the appeal record with the court's earlier order. We denied the motion, citing the limited record contents authorized under Florida Rule of Appellate Procedure 9.141(b)(2)(A) (limiting record to “the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal”); and Levin v. State, 298 So. 3d 681 (Fla. 1st DCA 2020) (denying motion to supplement the record in Rule 3.850 appeal because requested documents were outside the scope of Rule 9.141(b)(2)(A)). The State then filed its answer brief, referencing and attaching the trial court's earlier order—while acknowledging, correctly, that it was technically improper to do so. The State argued it was “a waste of judicial resources” to reverse and remand for the trial court to enter a new order with the earlier order actually attached to it, when the contents of the earlier order and its legal effect are undisputed.

We do not disagree. However, the law limits the record contents, and the trial court's earlier order did not fall within such contents because it was not attached to the trial court's order now on appeal. Therefore, we reverse and remand for the trial court to attach documents proving Appellant's claims are successive, or to address the claim for jail credit on the merits. See Wright v. State, 222 So. 3d 620, 621 (Fla. 1st DCA 2017) (reversing and remanding to correct the same error); Copeland v. State, 320 So.3d 349 (Fla. 1st DCA June 18, 2021) (same).

Reversed and Remanded.

The language of Rule 9.141(b)(2)(A), Florida Rules of Appellate Procedure (2021)—as interpreted in Levin v. State, 298 So. 3d 681 (Fla. 1st DCA 2020)—limits the contents of the record for appellate purposes in this category of cases. An earlier order of the trial court was not attached and thereby did not fall within the Rule as strictly construed, see Levin, making it incumbent on trial courts to fully comply with the rule's provisions in creating the record on appeal. While it may be inefficient to comply with the Rule as construed by Levin, that's what's required until such time that the Rule is amended; a remand is not wholly wasteful if it serves as a reminder to trial judges to include attachments in the record on appeal in the first instance.

Kelsey, J.

Winokur, J., concurs; Makar, J., concurs in result with opinion.