Louisias v. State, 3D04-2005.

• Decision Date: 02 July 2008
• Docket Number: No. 3D04-2005.,3D04-2005.
• Citation: 985 So.2d 1181
• Parties: Jacqueline LOUISIAS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

985 So.2d 1181

Jacqueline LOUISIAS, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-2005.

District Court of Appeal of Florida, Third District.

July 2, 2008.

Nelson A. Rodriguez-Varela, Coral Gables, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

On June 29, 2004, after a jury trial, the defendant, Jacqueline Louisias ("Louisias") was found guilty of resisting an officer with violence and battery on a law enforcement officer. The trial court withheld adjudication and placed Louisias on eighteen months of reporting probation, which the trial court stayed pending appeal. Louisias timely filed her notice of appeal. Although she has not filed an initial brief nor a statement articulating the grounds upon which she seeks appellate review, Louisias requests a new trial. Having received neither filing, we hereby dismiss Louisias' appeal and deny her request for a new trial.

The circumstances are as follows. Since the filing of the notice of appeal, Louisias has requested and has obtained numerous continuances to file her initial brief and the record on appeal. The delay is due to the court reporter's failure to provide a full transcript of the trial proceedings.¹ In response to a rule to show cause filed by Louisias' appellate counsel, the court reporter filed a certificate in which she avers that her notes and the "disks" of the trial proceedings were "destroyed" in a flood in the court reporter's garage. While the court reporter was able to provide a full transcript of the voir dire proceedings, which took place on June 28, 2004, she claimed that she could not produce the record of the trial testimony presented the following day.

Because Louisias could not obtain a transcript of the trial testimony, she requested that this Court grant her a new trial. On November 21, 2007, this Court temporarily relinquished jurisdiction to allow Louisias to reconstruct the record pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). On November 28, 2007, the trial court entered an order finding that the trial record could not be reconstructed. No transcript of this proceeding has been provided to this Court for review and the trial court's order does not reflect what attempts were made to reconstruct the record.

On December 12, 2007, Louisias petitioned this Court to remand the case to the trial court for a new trial due to counsel's inability to obtain a transcript of the trial testimony or reconstruct the record. This Court denied the petition and instructed Louisias to provide a statement articulating the grounds upon which she was seeking appellate review. Instead of complying with this Court's order, Louisias' appellate counsel filed a motion for reconsideration of Louisias' petition to remand the case to the trial court for a new trial, claiming that because appellate counsel was not involved in Louisias' trial and all attempts to reach Louisias' trial counsel (a disbarred attorney) were unsuccessful, he is unable to determine the grounds for appeal.

The failure to obtain the trial record, even when the failure to do so is through no fault of the defendant, does not, however, require that a new trial be granted. See Jones v. State, 923 So.2d 486, 489 (Fla.2006) (holding that when requesting a new trial on the basis of a missing or lost transcript, the defendant bears the burden of demonstrating that a prejudicial error occurred in the trial court); see also Armstrong v. State, 862 So.2d 705, 721 (Fla.2003) (finding that a new trial was not warranted where the defendant "failed to link a meritorious appellate issue to the allegedly missing record and thus cannot establish that he was prejudiced by its absence"); Darling v. State, 808 So.2d 145, 163 (Fla.2002) (finding unpersuasive Darling's argument that because there were no records of the pretrial hearings that occurred in the case, meaningful review was precluded, requiring a new trial, and holding that because Darling did not demonstrate what specific prejudice, if any, he incurred because of the missing transcript, the missing transcript was not shown to be necessary for meaningful review); Ferguson...