Delap v. State, 49166

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM; OVERTON
• Citation: Delap v. State, 350 So.2d 462 (Fla. 1977)
• Decision Date: 29 September 1977
• Docket Number: No. 49166,49166
• Parties: David Ross DELAP, Appellant, v. STATE of Florida, Appellee.

Page 462

350 So.2d 462

David Ross DELAP, Appellant, v. STATE of Florida, Appellee.

No. 49166.

Supreme Court of Florida.

Sept. 29, 1977.

Elton H. Schwarz, Public Defender, Stuart and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

We have for consideration the motion for new trial for inability to complete the trial transcript of David Ross Delap, who was convicted of murder in the first degree and sentenced to death by the Circuit Court in and for Okeechobee County.

Notice of appeal was filed with this Court from the final judgment of conviction and sentence of death. The trial judge entered an order for transcription of reporter's notes on May 25, 1976, directing the court reporter to transcribe and file his notes of the trial of the cause, beginning January 6, 1976, and ending January 10, 1976, but to exclude therefrom the voir dire examination of the jurors and the opening and closing statements of counsel. Thereafter, defendant filed a timely motion for supplementary transcription of the record requesting the trial court to direct the court reporter to transcribe his notes of the voir dire of the jury and closing arguments in both the trial and sentencing proceedings. On December 6, 1976, the trial court ordered the court reporter to transcribe the voir dire of the jury and closing arguments of counsel during trial and sentencing phases. A subsequent order was entered May 11, 1977, compelling the court reporter to file the transcript of the jury charge conferences, charge to the jury in both the trial and penalty phases, voir dire of the jury and closing arguments of counsel in both the trial and penalty phases, or to show cause why he should not be adjudged in contempt of court.

On June 11, 1977, the trial judge entered an order expressly stating:

"It further appears to the Court that no portions of the transcript of the jury charge conferences; charge to the jury in both the trial and penalty phases; voir dire of the jury; or closing arguments of counsel in both the trial and penalty phases regarding the trial of this cause have been filed with the Clerk as directed by said Order of May 11, 1977.

"It further appears to the Court from inquiry of the State and the attorney for the defendant that it is impossible to reconstruct said portions of the record by stipulation or otherwise and that there appears to be no means of completing the requested record under Rule 3.7(1) Florida Appellate Rules.

"In consideration of the foregoing it is, therefore,

"ORDERED AND ADJUDGED that the...