DEBOSE v. STATE (2023)

In April 2022, Kadeem Debose pleaded no contest to two charges of criminal non-compliance with sex-offender reporting and registration laws. In doing so, he reserved the right to seek appellate review of the trial court's denial of a motion to suppress, and he and the State agreed that a grant of the motion would have been dispositive to the charges. See Fla. R. App. P. 9.140(b)(2)(A)(i). After being sentenced, Debose appealed to this court. The public defender for the Eighth Judicial Circuit (“PD8”) represented Debose in the trial court, and in May 2022, one of her assistant attorneys filed a statement of judicial acts to be reviewed, which identified the suppression motion as the one appellate issue in play. See Fla. R. App. P. 9.140(f)(2)(A) (requiring the filing of “a statement of judicial acts to be reviewed” when public funds must be spent to transcribe proceedings designated by the defendant).

The trial court, at PD8's request, declared that Debose continued to be insolvent and ordered that the public bear the expense of his appeal. PD8 also filed a motion to authorize transcription of one hearing at the public's expense: the one on Debose's motion to suppress. See id. (requiring trial counsel to file “a designation to the approved court reporter or approved transcriptionist requiring preparation of only so much of the proceedings as fairly supports the issue raised” in the statement of judicial acts). The trial court granted that motion; it also appointed PD8 to represent Debose on appeal. The trial court clerk transmitted the record on appeal to this court in June 2022, and the record included the motion to suppress and the designated transcript of the motion hearing.

With PD8's record-preparation duties fulfilled, PD8 designated the public defender for the Second Judicial Circuit (“PD2”) to represent the appellant in this case, pursuant to section 27.51(4), Florida Statutes. Under Florida Rule of Appellate Procedure 9.140(g)(1), the initial brief was due thirty days later—August 5, 2022. On that day, PD2 took the full sixty-day extension of time by agreement and notice allowed by this court's administrative order 19-2. When the new due date for the initial brief arrived (October 4, 2022), PD2 filed with us a motion to supplement the record. Cf. Fla. R. App. P. 9.300(b) (providing for tolling of deadline by filing of a non-excepted motion, until disposition of the motion). That is the motion we address here. To the extent that it seeks to correct the record by adding items that originally should have been included, we grant the motion. We otherwise deny the request.

The motion identifies three state exhibits from the suppression hearing that should have been included in the record on appeal but were not. Two exhibits are search warrants introduced by the State, and one exhibit is a video of the victim's interview played by the State at the hearing. The motion, however, also asks to supplement the record with transcripts of three additional hearings that were not previously mentioned in any designation to a court reporter or in a motion filed with the trial court—so presumably not yet been prepared or filed with the trial court.

To be sure, rule 9.200(f)(1) allows for correction of the record “[i]f there is an error or omission in the record.” When “the record is incomplete, [this court will] direct a party to supply the omitted parts of the record.” Fla. R. App. P. 9.200(f)(2). Along the same lines, we will not decide a case based on “an incomplete record, until an opportunity to supplement the record has been given.” Id. We then can think of at least two problems that a motion pursuant to rule 9.200(f) can be used to address. One, obviously, is to correct an omission of an item from the record on appeal that rule 9.200 requires be there. Another is to add something to the record that was not initially required to be included but is later determined by appellate counsel, in good faith, to be necessary for court consideration of a legal argument that counsel anticipates raising (or has already raised) in the briefing. This might occur where appellate counsel independently orders a previously undesignated hearing transcript and, prior to seeking supplementation, determines from a review of it that the transcript supports an appellate argument that counsel wants to make.

With these principles in mind, we first take the part of the motion requesting that the warrants and video be added to the record on appeal. These fall squarely within what the trial clerk must include and transmit as the record (unless directed otherwise by counsel): “all exhibits that are not physical evidence.” Fla. R. App. P. 9.200(a)(1); see also id. (requiring, in a criminal appeal, that the trial clerk transmit a copy (rather than the original) of any CD, DVD, “or similar electronically recorded evidence” submitted to the trial court). This request, then, is easy, as it seems to reflect the first use of rule 9.200(f) that we just mentioned. Counsel did not direct the trial clerk not to include these exhibits, see id. (a)(2), so their omission from the record on appeal must be corrected by the trial clerk transmitting a supplemental record that includes the missing exhibits.

The other part of the motion, which requests additional transcripts, is another matter. The motion does not assert that a transcript designated and filed in the trial court was erroneously omitted from the record. See Fla. R. App. P. 9.200(a), (b) (defining the record on appeal as including “any transcript(s) of proceedings filed in the lower tribunal” and setting out the designation process for the preparation and filing of transcripts of proceedings). It also does not suggest that the hearings it mentions have been transcribed, and it otherwise fails to explain what those hearings are. Further, the motion does not tell us how any of those hearings relate either to the one judicial act identified in the statement filed by PD8 pursuant to rule 9.140(f)(2)(A) (the denial of the motion to suppress) or to some other legal issue that counsel has identified as meriting appellate review.^* The motion instead merely states, as to these three new hearings, that PD2 requires the additional transcripts “to evaluate any issues that may be appropriate to raise on appeal.”

In this part of the motion, PD2 does not appear to be utilizing rule 9.200(f) in either of the two typical ways that we acknowledged above. There may be additional uses for a motion to supplement beyond the two we mentioned; we, of course, do not mean to suggest that there are not. Seeking a last-minute tolling of a briefing deadline and circumventing appointed trial counsel's resource-conserving designations, however, do not strike us as likely being among those permissible uses. We cannot lose sight here of the purpose behind rule 9.140(f)(2)(A), which is to ensure responsible use of public resources in an appointed-counsel or indigent defendant case. In this vein, there is no point to rule 9.140(f)(2)(A) if appointed or designated appellate counsel later can just file a request with this court, on the day the initial brief is due, for publicly funded transcription of all the hearings not previously designated by trial counsel (with the anodyne effect of extending out the briefing schedule indefinitely). Cf. § 43.16(6)(a), Fla. Stat. (requiring each public defender and regional conflict counsel to have internal controls to prevent “waste,” as defined in section 11.45(1)).

Having made these observations, we do not want to overstate the reach of rule 9.140(f)(2)(A) or the extent of our involvement in record preparation. Rule 9.140(f)(2)(A) is not a limit on what appellate counsel can do to ensure the proper record is before this court to support a constitutionally sufficient appeal. At the same time, rule 9.200(f) is not the mechanism by which counsel seeks authorization for additional transcription at public expense, even if court-appointed appellate counsel wants to search for legal issues to raise on appeal. Indeed, there typically is no need for any order from us for counsel to order more transcripts. See Fla. R. App. P. 9.140(f)(2)(B) (“Either party may file motions in the lower tribunal to reduce or expand the transcripts.”).

Meanwhile, it seems to us that PD2 oftentimes will not need court authorization at all (not even from the trial court) to get that transcription done. See § 27.51(6), Fla. Stat. (authorizing appropriation to each public defender who may be designated to handle an appeal for “the payment of expenses incurred in cases on appeal”); § 27.58, Fla. Stat. (making the public defender in each judicial circuit “the chief administrator of all public defender services authorized under s. 27.51 within the circuit”); § 29.006(2), Fla. Stat. (providing for a state-funded element in public defender and regional conflict counsel budgets for “[r]easonable court reporting and transcription services necessary to meet constitutional or statutory requirements”); but cf. § 29.015(1), Fla. Stat. (providing for contingency funding through the Justice Administrative Commission for situations where a public defender or regional conflict counsel runs a deficit “in contracted due process services appropriation categories”).

If court authorization is required to get the transcription, it would be an ancillary matter unrelated to the record or the order on review, so the request for such authorization still would go straight to the trial court, not here. See § 27.5305(2)(b), Fla. Stat. (authorizing state payment of transcription of court hearings through the Justice Administrative Commission for private court-appointed counsel). § 27.5304(3), Fla. Stat. (providing that the trial court “retains primary authority and responsibility for determining the reasonableness of all billings for ․ costs”); cf. Willey v. W.J. Hoggson Corp., 105 So. 126, 128 (Fla. 1925) (“When the jurisdiction of the appellate court attaches, it is exclusive as to the subject covered by the appeal.”); Bailey v. Bailey, 392 So. 2d 49, 52 (Fla. 3d DCA 1981) (collecting cases and noting that “[i]f what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court's power and authority to decide the issues presented to it by the appeal, then the trial court can act”); Payne v. State, 493 So. 2d 1104, 1105 (Fla. 1st DCA 1986) (“The test for determining whether the trial court may proceed is not whether it is proceeding in a matter which is related to the final judgment, but whether it is proceeding in a matter which affects the subject matter on appeal.” (citing Bailey)).

Once the additional transcript is prepared—by whatever means—the court-appointed appellate counsel can review it and assess whether it is relevant to a legal argument to be raised on appeal. If the transcript turns out to be relevant, then rule 9.200(f) certainly is available to help with getting the needed transcript added to the record. This process, of course, takes some planning and diligence in advance on the part of counsel. It is not something that should be commenced when the initial brief finally is due. Missing from the present motion, then, is any indication of this type of diligent assessment to support a need to supplement the record. Cf. Verasso v. State, 346 So. 3d 1282, 1282–83 (Fla. 1st DCA 2022) (explaining that a motion to supplement should be filed early in an appeal to have added to the record “material that counsel knew, or should have known through the exercise of diligent review at inception of the appeal, existed and was or might be needed for the appeal” (emphasis supplied)); id. at 1283 (“Counsel's obligation of timeliness demands an early, careful, and complete assessment of the need to supplement the record on appeal, so as to avoid unnecessary delay in disposition.”).

Simply put, PD2 gives us nothing to work with to help assess whether there is a need for the additional transcripts to be added to the record on appeal—beyond an assertion that counsel wants them so she can review them. An order to supplement the record under rule 9.200(f) is not there just for the asking. A motion to correct or supplement the record, like any other motion filed with this court, must include a well-considered rationale for the requested relief. We hasten to reemphasize here that a motion to supplement is not “an ongoing mechanism to obtain an indirect extension of time.” Verasso, 346 So. 3d at 1282. Without more than what counsel has given us here, we have no basis for granting the motion.

The trial court clerk shall transmit a supplemental record with the missing exhibits within thirty days of today. The appellant shall serve an initial brief within fifteen days thereafter. Motion GRANTED in part and DENIED in part.

We've made too much out of a simple and extremely common unopposed motion to supplement the record on appeal, and thereby we have injected untenable delay in this case. Appellant's counsel asked to add five hearing transcripts, and gave us a good and valid reason (though the rules and our administrative orders don't require a reason): to see if the transcripts revealed any arguable appellate issues. The appellate rules do not limit appellate counsel to the issues and documents that trial counsel initially identifies for appeal. Appellate counsel ought to exercise independent professional judgment to exhaust arguable issues, even if, and especially if, trial counsel filed a too-common statement of judicial acts to be reviewed stating simply, “judgment and sentence” or the like. Trial counsel should do better at the outset, since they are the ones most familiar with the issues and the record, but appellate counsel should also be able to make up for trial counsel's failures and omissions.

On the other hand, a lot of lawyers seem to be abusing the extension and supplementation process as a workload management technique—to kick the can down the road. Maybe each of them thinks he or she is the only one doing it, but I doubt that; we are seeing it far too much. That is inappropriate and, in my view, unprofessional and unethical. Raising this so late in the process delays disposition, makes it harder for us to comply with our timeliness standards, and dampens litigants’ expectations of relatively quick answers. Our professional obligations demand more. The preamble to the Rules of Professional Conduct is very clear: “In all professional functions a lawyer should be competent, prompt, and diligent.” R. Regulating Fla. Bar ch. 4 pmbl. Rule 4-1.3, entitled “Diligence,” provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.”. The comment is on point: “A lawyer's workload must be controlled so that each matter can be handled competently. Perhaps no professional shortcoming is more widely resented than procrastination.” R. Regulating Fla. Bar. 4-1.3 cmt. I am keenly aware of, and sympathetic to, the problems of high workload and staffing shortages. But it is not more work to address record supplementation up front, and this should become a priority.

FOOTNOTES

FOOTNOTE.   To be clear, the statement of judicial acts required by rule 9.140(f)(2)(A) has a limited function: to conserve public funds with respect to transcripts. It does not operate as a limit on appellate counsel's review of the trial court proceedings or the issues that counsel can raise on appeal.

Tanenbaum, J.

Ray, J., concurs; Kelsey, J., concurs in part and dissents in part with an opinion.