Bennett v. State

• Decision Date: 16 March 1967
• Docket Number: No. 1-282,1-282
• Citation: 196 So.2d 449
• Parties: Charles Fred BENNETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 449

196 So.2d 449

Charles Fred BENNETT, Appellant, v. STATE of Florida, Appellee.

No. 1-282.

District Court of Appeal of Florida, First District.

March 16, 1967.

Charles Fred Bennett, in pro. per.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

JOHNSON, Judge.

The State has filed a motion to dismiss this appeal pursuant to Rule 3.9(a), Florida Appellate Rules, 31 F.S.A., for failure of the appellant to file his brief within the period required by Florida Appellate Rule 6.11(b).

It appears from the transcript of the record filed with this court that notice of appeal was filed by the appellant on January 7, 1966, appealing from the judgment of the court entered on December 3, 1965, hence timely, and, apparently at the same time filed his affidavit of insolvency and request to be permitted to proceed with his appeal as a pauper. Also, at that time was filed with the Clerk of the trial court a request for the records needed to perfect his appeal. Two of the items requested were: (1) transcript and official notes of any and all hearings taken by the court reporter, and (2) any and all evidence on record. This has not been done by the Clerk of the lower court. In fact, based on the Clerk's certificate, there is no written report of the testimony or evidence. On December 19, 1966, eleven or twelve months after the request for the transcript of the official notes of the court reporter was made, the appellant filed with this court a notice to vacate and set aside the judgment of conviction. This motion set out the same fact mentioned supra, that he had been trying to get a transcript of the testimony so that he could file his brief in his appeal. This motion was denied by this court, without prejudice, by administrative order of February 6, 1967.

On February 8, 1967, the State filed its motion to dismiss on the ground no brief had been filed. This motion points out that the transcript of record was filed about November 2, 1966, but fails to point out that the transcript of record does Not contain a transcript of the testimony as requested by the defendant-appellant approximately a year ago. Nothing is shown in the record of this cause as to why the Clerk has failed to meet the request of the defendant as to what to include in the record on appeal, but it was brought out in oral argument of the State on the motion to dismiss, that the court reporter had died after the trial but before transcribing his or her notes of the testimony. In view of this state of facts, we must hold that at this state of these proceedings, the Clerk of the Circuit Court, having failed to provide the appellant with a transcript of the testimony, as required by the rules and law, the appellant cannot be penalized for failure to comply with a rule which is necessarily dependent upon another rule which has not been complied with by an agency of the State. The motion to dismiss is therefore denied, without prejudice to be renewed if the directions hereinafter given are not complied with by the appellant where applicable to him.

The appellant has cited in his motion filed December 19, 1966, a decision of the United States Supreme Court in Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253, decided June 10, 1957, wherein Chessman was convicted and had the death sentence imposed upon him in the state court of California. The court reporter at the trial died before completing a transcript of his notes of the testimony. A substitute...