Partlow v. State

• Decision Date: 20 December 2019
• Docket Number: No. 1D19-1272,1D19-1272
• Citation: 285 So.3d 399 (Mem)
• Parties: Thomas PARTLOW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

285 So.3d 399 (Mem)

Thomas PARTLOW, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-1272

District Court of Appeal of Florida, First District.

December 20, 2019

ON MOTION TO SUPPLEMENT THE RECORD

Per Curiam.

Thomas Partlow moved to supplement the record on appeal with documents not included in the postconviction appeal record. We directed Partlow to address whether the requested supplementation was permitted by the rules of procedure. Partlow responded, requesting the motion to supplement be withdrawn. We GRANT this motion to withdraw. Appellant's initial brief shall be filed twenty days from the date of this order.

Ray, C.J., concurs; Bilbrey and Winokur, JJ., both concur specially with written opinions.

Winokur, J., concurring specially.

While Partlow has asked us to withdraw his motion to supplement the record, it should be noted that he did so because he acknowledged in his response that case law applying the rules of appellate procedure does not permit the requested supplementation. I agree that we should grant the motion to withdraw. However, we requested the additional response because the issue here arises regularly in this Court. Because of Partlow's candid acknowledgment that the rules do not permit the requested supplementation, as well the need for guidance on this issue, I believe we should clarify what an appellate record for a summarily-denied postconviction motion may contain.

Partlow was convicted of first-degree murder and robbery with a deadly weapon for crimes he committed as a juvenile and was sentenced to mandatory life without parole (Count I) to run consecutively with 45 years (Count II). Based on the Supreme Court's holding that "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment," Miller v. Alabama , 567 U.S. 460, 470, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), we reversed the sentence imposed on Count I for resentencing. Partlow v. State , 134 So. 3d 1027 (Fla. 1st DCA 2013).

Partlow filed a "Motion to Correct Sentence on Count II," under Florida Rule of Criminal Procedure 3.850. Partlow argued that a then-recent decision by the Fifth District required resentencing on both Counts I and II. Purdy v. State , 268 So. 3d 813 (Fla. 5th DCA 2017). The postconviction court denied the motion without an evidentiary hearing, finding that the supreme court had since quashed the Fifth District's decision. State v. Purdy , 252 So. 3d 723, 728 (Fla. 2018) ; see also Warthen v. State , 265 So. 3d 695, 697 (Fla. 4th DCA 2019). Partlow appealed the order denying his motion.

Partlow filed a motion to supplement the record with an order setting a hearing and appointing counsel and transcripts of three status hearings. The order was filed, and all hearings occurred, before Partlow filed his postconviction motion, but he did not attach these documents to support his claim. On appeal, he asserts that supplementation was needed because "[r]elevant factors include the appointment of counsel, any concessions made by the state regarding that matter, and any resentencing hearings held to date."

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).¹ In St. Cyr v. State , 126 So. 3d 1166, 1166 (Fla. 4th DCA 2012), the State moved to supplement the appellate record with sentencing documents to allow the appellate court a fuller understanding of the defendant's claims. The Fourth District denied the State's motion 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."²

Id. Rule 9.141(b)(2)(A) similarly does not contain any of the documents Partlow sought to include in the record.³

Nor does Florida Rule of Appellate Procedure 9.200(f) ("Correcting and Supplementing Record") provide a basis for supplementing this record here. Under Rule 9.200(f)(1), an "error or omission in the record" may be "correct[ed]." "This rule is intended to assure that any portion of the record before the lower tribunal which is material to a decision by the court be made available to the court so that appellate proceedings will be decided on their merits." Thornber v. City of Walton Beach , 534 So. 2d 754, 755 (Fla. 1st DCA 1988). This rule is not applicable here as, by all indications, all documents permitted under rule 9.141(b)(2)(A) have been included in the record on appeal; that is, no correction to the record is needed. See Crockett v. State , 206 So. 3d 742, 752 (Fla. 1st DCA 2016) (on motion for rehearing and supplementing the record) (" Florida Rule of Appellate Procedure 9.200(f), which allows for correcting and supplementing the record, ‘is not intended to correct inadequacies in the record which result from a failure of a party to make a record below.’ " (quoting Thornber , 534 So. 2d at 755 )).

The documents Partlow sought were not attached to his motion, any response or reply, nor 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. See 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."). For this reason, the Florida Rules of Appellate Procedure do not permit these documents to be part of the record on appeal.⁴ If we had decided Partlow's motion to supplement the record, I would have denied it for these reasons.

Bilbrey, J., concurring specially.

I agree that we are correct to grant the request to withdraw the motion to supplement the record. I do not agree, however, that the Florida Rules of Appellate Procedure would not permit the supplementation had the request not been withdrawn. I therefore feel compelled to respond to Judge Winokur.

"It is elemental that an appellate court may not consider matters outside the record, and when a party refers to such matters in its brief, it is proper for the court to strike same." Ullah v. State , 679 So. 2d 1242, 1244 (Fla. 1st DCA 1996). Appellant sought to supplement the record on appeal so he could refer to purportedly pertinent matters from the trial court in his initial brief yet to be filed with this court. Appellant's motion to supplement the record was filed without reference to a rule but is permitted by rule 9.200(f)(1), Florida Rules of Appellate Procedure.¹ His motion claimed that relevant issues for consideration on appeal "include the appointment of counsel, any concessions made by the state regarding the matter, and any resentencing hearings held to date." Appellant therefore sought to add to the 59-page record on appeal the following:

(1) the order setting status hearing and scheduled resentencing held on November 17, 2016; (2) the transcript of the status hearing and scheduled resentencing held on November 17, 2016; (3) the transcript of the status hearing and scheduled resentencing held on December 5, 2016; and (4) the transcript of the status hearing held on February 7, 2017.

Judge Winokur contends that rule 9.141(b)(2)(A), Florida Rules of Appellate Procedure, sets forth everything that can be in the record.² I respectfully disagree. Rule 9.200(f)(1) states, "If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or the court may correct the record." Other courts have permitted supplementation of the record with matters that are generally excluded (such as notices of hearing) when such matters are "germane to an issue on appeal." Elegele v. Halbert , 890 So. 2d 1272, 1274 n.4 (Fla. 5th DCA 2005). See also Philip J. Padovano, Florida Appellate Practice § 12:9 at 255 (2018 ed.) ("The appellate courts are required to allow the parties to supplement the record if it appears that material portions were omitted.").

Under Judge Winokur's view, supplementation is only allowed if the clerk of the lower tribunal commits an error or omission rendering the "record" — as strictly defined by another rule — incomplete. I do not read rule 9.200(f) to be so limited that it applies only if the clerk of the lower tribunal makes an error, and it seems odd to have a rule of procedure that only applies if a clerk does not do what other rules require.

The unopposed motion, now withdrawn, claimed that the above documents were omitted from the record, and it was necessary for supplementation so that Appellant could best argue his case. A review of the committee notes to rule 9.200 shows supplementation could have been allowed here. The committee notes state, "This rule is intended to ensure that any portion of the record in the lower tribunal that is material to a decision by the court will be available to the court." The committee notes further state, "The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record developed in the lower tribunal."

Normally on appeal, the "burden to ensure that the record is prepared and transmitted in accordance with" the Florida Rules of Appellate Procedure is on an appellant. Fla. R. App. P. 9.200(e). This is understandable because normally the burden is on an appellant to demonstrate error. See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150 (Fla. 1979).³ But if a motion for postconviction relief is "conclusively resolved...