Levin v. State

• Decision Date: 08 January 2020
• Docket Number: No. 1D19-3578,1D19-3578
• Citation: 298 So.3d 681
• Parties: Joseph Luis LEVIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

298 So.3d 681

Joseph Luis LEVIN, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-3578

District Court of Appeal of Florida, First District.

January 8, 2020

Joseph Luis Levin, pro se, Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

ON MOTION TO SUPPLEMENT THE RECORD ON APPEAL

Winokur, J.

Appellant moved to supplement the record on appeal of a summarily-denied postconviction motion on October 15, 2019. We deny the motion because it fails to demonstrate that the items sought fall within the scope of the record as defined by Florida Rule of Appellate Procedure 9.141(b)(2)(A).

Florida Rule of Appellate Procedure 9.141(b) governs appeals from certain postconviction proceedings and specifies what documents may be included in the record:

When a motion for postconviction relief under rules 3.800(a), 3.801, 3.802, 3.850, or 3.853 is granted or denied without an evidentiary hearing, the clerk of the lower tribunal shall electronically transmit to the court, as the record , the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.

Fla. R. App. P. 9.141(b)(2)(A) (emphasis added). The motion under review was filed under Florida Rule of Criminal Procedure 3.850, and the trial court denied it without evidentiary hearing. The documents Levin seeks were not attached to his motion, any response or reply, or the order; they were not before the postconviction court when it ruled on the motion and thus may not be before us when we review the order. Accordingly, they cannot be included in the record. See St. Cyr v. State , 126 So. 3d 1166, 1166 (Fla. 4th DCA 2012) (denying a motion to supplement the record because "the record, as structured by [ rule 9.141(b)(2)(A) ], does not contain the original sentencing documents, unless they are an attachment to the order"); Williams v. State , 244 So. 3d 1173, 1175 n.1 (Fla. 2d DCA 2018) ("[W]e are precluded from considering the transcripts because they were not considered by the postconviction court and are not otherwise a part of the summary record.");^* see also Partlow v. State , 44 So.3d 399 (Fla. 1st DCA Dec. 20, 2019) (Winokur, J., concurring specially) (concluding that Rule 9.141(b)(1)(A) precludes supplementation of the record with documents not included in that rule).

Lewis and Jay, JJ., concur.

* We note that if the record permitted by Rule 9.141(b)(2)(A) does not "show[ ] conclusively that the appellant is entitled to no relief," then "the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P. 9.141(b)(2)(D). "A lack of an...