Personna v. State

• Decision Date: 10 May 2023
• Docket Number: 4D22-2518
• Parties: ROUDELY PERSONNA, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

1

ROUDELY PERSONNA, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D22-2518

Florida Court of Appeals, Fourth District

May 10, 2023

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Lawrence M. Mirman, Judge; L.T. Case No. 562019CF002052AXXXXX.

Carey Haughwout, Public Defender, and Mara C. Herbert and Christine C. Geraghty, Assistant Public Defenders, West Palm Beach, for appellant.

No appearance required for appellee.

ON MOTION FOR EXTENSION OF TIME FOR INITIAL BRIEF

PER CURIAM.

This is an appeal from a judgment and sentence. Appellant was sentenced to life in prison after being convicted of robbery with a deadly weapon and kidnapping. After we had previously issued a "no further extensions" order, appellant moved for an extension of time to serve the initial brief that we reluctantly granted on April 14, 2023. In the order granting that motion, we also stated that an opinion would follow.

In this non-dispositive opinion regarding what occurred in this case, we write to address two practices that have become more commonplace in this court and others. Specifically, this court has seen multiple instances where counsel attempts to indirectly receive an extension of time to file a brief by seeking supplementation of the record on appeal, usually after counsel has exhausted all their agreed extensions of time. We have also seen that "no further extensions" orders by this court and resulting deadlines for compliance are being treated by some as mere suggestions that can be ignored with impunity.

2

A motion to supplement the record is not a motion for extension of time, nor is it a tool for indirectly obtaining an extension of time. Debose v. State, 48 Fla L Weekly D427, D429 (Fla 1st DCA Feb 22, 2023) But as our sister court acknowledged, "a lot of lawyers seem to be abusing the extension and supplementation process as a workload management technique-to kick the can down the road" Id. (Kelsey, J, concurring in part and dissenting in part).

Florida attorneys are required to "act with reasonable diligence and promptness in representing a client." R. Regulating Fla. Bar 4-1.3. As part of their responsibility of diligently representing clients, attorneys are charged with managing their workload and ensuring all work is completed in a timely manner. "Counsel's obligation of timeliness demands an early, careful, and complete assessment of the need to supplement the record on appeal, so as to avoid unnecessary delay in disposition." Verasso v. State, 346 So.3d 1282, 1283 (Fla. 1st DCA 2022). Seeking supplementation in an untimely manner not only prejudices opposing parties but also "makes it harder for us to comply with our timeliness standards, and dampens litigants' expectations of relatively quick answers." Debose, 48 Fla.L.Weekly at D429 (Kelsey, J., concurring in part and dissenting in part). Put simply, the untimely filing of motions to supplement the record slows down the entire appellate process.

Here, appellant's counsel did not act diligently in submitting the initial brief. After counsel failed to timely file the initial brief pursuant to a November 18, 2022, agreed extension of time, this court issued an order to show cause on December 27 for lack of prosecution. Later, after having already received ninety days in agreed extensions, counsel filed another motion for extension of time while assuring this court that "[t]his initial brief is essentially complete," and requesting an additional ten days to serve it. This court granted that motion with the proviso "that no further extensions will be granted absent a detailed explanation for why the initial brief has not yet been filed" and with a specific warning that "[a]ttorney workload does not constitute extraordinary circumstances which justifies a further extension of time."

Instead of timely serving the initial brief, counsel waited until the day before it was due-February 28, 2023-to seek supplementation of the record to add a single hearing transcript. We granted the motion to supplement, which effectively served as an additional extension and tolled the time to serve the initial brief until ten days after receipt of the supplemental record. Counsel transmitted the supplemental record, a forty-two-page transcript, on March 31, resulting in counsel once again

3

moving for an extension of time to serve the initial brief-but this time waiting until the due date for the brief, April 12, to file that request.

Despite being previously advised that no further extensions would be granted absent a detailed explanation of extraordinary circumstances and indifferent to our specific warning that attorney workload was not a valid excuse...