Garcia v. State, 89-1990

• Decision Date: 27 March 1991
• Docket Number: No. 89-1990,89-1990
• Citation: 16 Fla. L. Weekly 806,578 So.2d 325
• Parties: Heriberto GARCIA, Appellant, v. STATE of Florida, Appellee. 578 So.2d 325, 16 Fla. L. Week. 806
• Court: Florida District Court of Appeals

Page 325

578 So.2d 325

Heriberto GARCIA, Appellant, v. STATE of Florida, Appellee.

No. 89-1990.

578 So.2d 325, 16 Fla. L. Week. 806

District Court of Appeal of Florida,

Fourth District.

March 27, 1991.

Rehearing and Certification Denied May 15, 1991.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We reverse and remand for a new trial. The appellant was charged and convicted for trafficking in cocaine over 400 grams and conspiracy to traffic in cocaine over 400 grams. Prior to trial, he filed a motion for disclosure of the confidential informant. The trial court ordered an in-camera hearing with the informant. After the hearing, it denied the appellant's motion for disclosure.

The appellant appealed from the trial court's order. This court remanded the case for the trial court to prepare an affidavit setting forth who was present, the findings that were made, and the trial court's conclusions, at the in-camera hearing. The trial court filed an affidavit stating that only the trial judge, prosecutor and informant were present at the in-camera hearing, and listing some of its recollections of the hearing. On appeal, the appellant argues that the trial court's reconstruction of what took place at the in-camera hearing is an insufficient basis for review since the defense, the clerk and the court reporter were excluded from the hearing. We agree.

Rule 3.220(m), Florida Rules of Criminal Procedure, states that a "record shall be made" of an in-camera hearing. Rule 9.200(a)(1), Florida Rules of Appellate Procedure, defines "record" to include original documents, exhibits, and the transcript of the proceedings. We believe that the trial court erred in not having a court reporter present to transcribe the record of the in-camera hearing, as required by rule 3.220(m). Without a transcription of the hearing, it is impossible to discern exactly what occurred.

Furthermore, a stipulated statement or reconstruction pursuant to Rules 9.200(a)(3) and (b)(4), Florida Rules of Appellate Procedure, is not plausible under the circumstances of this case. Those rules contemplate participation by both parties, which cannot be achieved here because the defense was excluded from the in-camera hearing. For that reason, the trial court's affidavit is an insufficient ground for review since it is an unilateral recollection.

In Lucero v. State, 564 So.2d 158, 158 (Fla. 3d DCA 1990), the court concluded:

However, on appeal, we cannot properly determine the relevant facts forming the basis of the trial judge's conclusion or determine whether there was an abuse of discretion because the in-camera hearing was not transcribed. See Felton v. State, 534 So.2d 911 (Fla. 3d DCA 1988); Wester v. State, 368 So.2d 938 (Fla. 3d DCA 1979).

See also Simmons v. State, 200 So.2d 619 (Fla. 1st DCA 1967) (new trial ordered since no transcript was available and the defense was unable to participate in reconstruction). Accordingly, we reverse this case and remand it for a new trial.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

DOWNEY, J., and WALDEN, JAMES H., (Retired) Associate Judge, concur.

GARRETT, J., dissents with opinion.

GARRETT, Judge, dissenting.

I would affirm. Before trial, both codefendant Feanny, now deceased, and appellant Heriberto Garcia [Garcia] filed motions for disclosure of the identity of the state's confidential informant. They alleged that disclosure was necessary to properly prepare their defenses. The trial judge held an in camera hearing. Only the trial judge, an assistant state attorney and the confidential informant were present. The trial judge denied the motions. After Garcia appealed his conviction for trafficking and conspiracy to traffic in cocaine, this court granted Garcia's motion "to relinquish jurisdiction for reconstruction" so that the trial judge could prepare an affidavit as to what took place in camera. ¹ The trial judge responded by filing an affidavit ² and attached a document entitled "Proposed Questions for Confidential Informant." The document was prepared by Feanny's attorney and contained a list of questions that Feanny wanted the trial judge to ask the confidential informant. During the hearing, the trial judge had jotted down the confidential informant's answers to the questions next to each question on the document.

Rule 3.220(m), Florida Rules of Criminal Procedure, authorizes in camera proceedings and requires that a record be made. Because no court reporter attended the hearing, no transcript exists. However, a record can be perfected without a transcript. When no transcript is available a statement of the proceedings may be prepared. Fla.R.App.P. 9.200(b)(4).

It is not a necessary prerequisite to appellate review that the record on appeal contain a verbatim transcript of the evidence and events transpiring at the [hearing]. On the contrary, a summarized statement in narrative form may furnish a substantially accurate account of the rulings of the trial judge and the basis on which they were involved. Such statement may be prepared from notes kept by counsel; from the judge's notes; from the recollection of counsel; the judge and witnesses as to what occurred....

Bannerman v. Wainwright, 283 So.2d 124, 125 (Fla. 1st DCA 1973). The trial judge's affidavit and the attached document with his notes constituted a record of the hearing. Garcia relies on Lucero v. State, 564 So.2d 158 (Fla. 3d DCA 1990) (appellate court had no basis to decide appeal if no transcript of in camera hearing exists)....