Shepard v. State

• Decision Date: 28 June 2021
• Docket Number: CASE NO.: 1D20-3384
• Parties: Adam Lloyd SHEPARD, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
• Court: Florida District Court of Appeals

322 So.3d 748

Adam Lloyd SHEPARD, Appellant/Petitioner(s),

v.STATE of Florida, Appellee/Respondent(s).

CASE NO.: 1D20-3384

District Court of Appeal of Florida, First District.

June 28, 2021

BY ORDER OF THE COURT:

Appellee's motion to take judicial notice, filed April 5, 2021, is denied. See Levin v. State , 298 So. 3d 681, 682 (Fla. 1st DCA 2020) (confirming that record on appeal in certain appeals from orders denying postconviction motions is limited pursuant to rule 9.141(b)(2)(A) and cannot be supplemented beyond what the rule allows).

As Appellee has referred to case number 1D15-3836 repeatedly in the answer brief, the answer brief, filed April 5, 2021, is hereby stricken. Appellee shall file an amended answer brief without these references within 15 days of the date of this order.

KELSEY and JAY, JJ., concur. MAKAR, J., concurs with opinion.

Makar, J., concurring.

It is often the case that the movant seeking to supplement the record on appeal in a summarily denied post-conviction case is the appellant, whose post-conviction motion was denied and whose appeal might benefit from having the appellate court consider all relevant documents. A panel of this Court in Levin v. State , 298 So. 3d 681, 682 (Fla. 1st DCA 2020), denied such a motion, concluding that only the documents specifically mentioned in Florida Rule of Appellate Procedure 9.141(b)(2)(A) (2020) may be considered.

It is sometimes the case, as in this matter, that the State is the movant, seeking to supplement the record on appeal via judicially-noticed documents in the appellant's direct appeal, claiming they are necessary to fully understand and adjudicate the claims presented. See, e.g. , St. Cyr v. State , 126 So. 3d 1166, 1166 (Fla. 4th DCA 2012) (denying State's motion to supplement the record).

Levin requires denial of the State's motion to supplement the record in this case, but it bears emphasis that symmetry in an overly constrained application of Rule 9.141(b)(2)(A) seems to serve neither party's interest and works to deprive appellate courts of relevant information that may be helpful in processing a case expeditiously and fairly. Indeed, it has been frequently the case that both the appellant and the State have agreed or stipulated to supplementation of the appellate record in the interests of justice but been denied; that seems wrong.

Judge Warner, almost a decade ago, bemoaned a strict application of the rule. St. Cyr , 126 So. 3d at 1166 ("One would think that an appellate court should have available to it the actual sentencing documents any time it reviews the ruling on a motion to correct an illegal sentence. However, for reasons unknown to us, Florida Rule of Appellate Procedure 9.141(b)(2)(A) provides" to the contrary.). And Ju...