Hamilton v. State, 90-1643

Decision Date04 January 1991
Docket NumberNo. 90-1643,90-1643
Citation573 So.2d 109,16 Fla. L. Weekly 142
Parties16 Fla. L. Weekly 142 Archie HAMILTON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for respondent.


Petitioner was tried without jury in the county court, and adjudicated guilty of driving while impaired, resisting arrest without violence and careless driving. He received a year's probation. He appealed judgment and sentence to the circuit court. Here he seeks review by certiorari of the circuit court's order dismissing his appeal.

When the record on appeal was filed, it was accompanied by a certificate of the court reporter that a portion of the testimony of one of the two witnesses for the state was missing and could not be located. The public defender, representing petitioner, filed a motion for reversal of the conviction because of lack of a complete record, or, in the alternative, for remand to the trial court for reconstruction of the missing portion of the record.

The state opposed the motion, stating the record as it now exists shows the appellant cannot now raise the issue of the validity of his arrest. This appears to address the contention in petitioner's motion to the circuit court that it is not clear from the record as it now stands whether the officer who arrested petitioner was also the officer who investigated the traffic accident as a result of which this prosecution occurred. Petitioner contended the officer who did the investigation could not legally make the misdemeanor arrest, and that if the same officer did both, illegal arrest would be an issue on appeal. Petitioner did not suggest this would be the sole issue on appeal.

The circuit court did not rule directly on petitioner's motion. By opinion the circuit court dismissed petitioner's appeal as frivolous. At the time of the entry of the opinion, briefs had not yet been filed by the parties. The court stated that the missing portions of the transcript do not impair a complete review, and a new trial was therefore not required. The court recited facts found in the existing record that support the existence of probable cause for petitioner's arrest. One may infer the circuit court believed the sole issue on appeal to be the validity of petitioner's arrest. One judge dissented, writing that he would remand for reconstruction of the record.

Petitioner moved for rehearing, urging that the dismissal was premature. In his rehearing motion petitioner stated that the state authorized him to indicate it agreed remand for reconstruction of the record, rather than dismissal of the appeal, was appropriate. Petitioner suggested that should reconstruction turn out to be impossible, the parties' briefs should address the effect of the incompleteness of the record on issues raised. The circuit court denied rehearing.

Once a criminal defendant has chosen to exercise his right to appeal, he is entitled to a full transcript of the trial record. Lipman v. State, 428 So.2d 733, 737 (Fla. 1st DCA 1983). Florida Rule of Appellate Procedure 9.200(f) makes provision for supplementation of an incomplete record, and states that no proceeding shall be determined because of the incompleteness of the record until there has been an opportunity to supplement the record. These principles of law do not bear directly on the instant issue, but furnish a sympathetic backdrop for it.

It has been said that an appellate court's judicially neutral review of the record is no substitute for the careful, partisan scrutiny of a zealous advocate; that it is appellate counsel's unique role to discover and highlight possible error and present it both orally and in writing to the appellate court. Wilson v. Wainwright, 474 So.2d 1162,...

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