Simmons v. State
| Decision Date | 22 June 1967 |
| Docket Number | No. H-242,H-242 |
| Citation | 200 So.2d 619 |
| Parties | Charles SIMMONS and Kenneth Ray McPherson, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
L. Arthur Lawrence, Jr., Public Defender, for appellants.
Earl Faircloth, Atty. Gen., and David Tumin, Asst. Atty. Gen., for appellee.
Appellants were indicted for the offense of breaking and entering with intent to commit a felony. During the trial they were represented by privately employed counsel. They were each found guilty by the jury as charged in the indictment, and were sentenced to a term of imprisonment in the state prison. From the judgments of conviction and sentence rendered by the court on December 22, 1965, this appeal was timely filed.
The initial phases of this appeal were duly perfected by appellants' privately employed counsel who filed assignments of error and directions to the clerk for making up the transcript of record. The assignments of error raise many questions which are evidentiary in nature relating to the sufficiency of the evidence to support the verdict, illegal search and seizure, and refusal of the court to give certain requested jury charges based upon the evidence in the case.
Subsequent to the perfection of this appeal the court reporter who reported the trial proceedings became ill and subsequently died before preparation of the transcript could be initiated. Her successor reporter endeavored in vain to prepare a record from the shorthand notes of the original reporter, but this effort proved futile. At this point appellants' privately employed counsel resigned under highly acrimonious circumstances, and were permitted by order of this court to withdraw from the case as attorneys for appellants. Upon motion of appellants, the public defender of the Third Judicial Circuit was appointed to represent them and to complete this appeal.
There has now been filed in this cause an order rendered by the trial judge in this proceeding by which it is adjudged that the transcript of the testimony taken at the trial is not available and cannot be produced. Court-appointed counsel for appellants represents that since he was not trial counsel he is not in position to stipulate with counsel for the State upon a condensed statement in narrative form of the testimony and evidence adduced during the trial which might be acceptable in lieu of and as a substitute for a certified transcript of the trial proceedings. Based upon the foregoing unusual circumstances arising during the pendency of this appeal appellants urge that the judgments of conviction and sentence rendered against them be set aside and a new trial awarded in the premises.
The right of one convicted of a crime to an appellate review of such judgment of conviction as may be rendered against him is a necessary ingredient of due process of law and guaranteed by the constitution of this state. 1 From the assignments of error filed by appellants herein, it affirmatively appears that the points sought to be raised by appellants on this appeal cannot be properly decided unless there is available to this court a complete transcript of the trial proceedings reflecting the testimony and evidence adduced at the trial. The failure of the proper officials to produce the trial transcript as requested by appellants, although due to no fault of their own, has effectively precluded appellants from being accorded a fair and impartial review of the alleged errors which resulted in the judgments of conviction rendered against them.
Appellee has invited our attention to Appellate Rule 6.9(d), 31 F.S.A. which provides for the correction or...
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Thomas v. Sec'y, DOC, Case No. 2:09-cv-809-FtM-99SPC
...review denied him "due process of state law as guaranteed by the constitution of this State." Id. (citing Simmons v. State, 200 So. 2d 619, 62-21 (Fla. 1st DCA 1967)). To present a federal constitutional claim properly in state court, "the petitioner must make the state court aware that the......
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Johnson v. State
...places the burden on the appellant to create a substitute record if the verbatim transcript is lost). See also Simmons v. State, 200 So.2d 619, 621–622 (Fla. Dist. Ct. App. 1967) (granting a new trial when the trial transcript was lost after concluding that recreation efforts would not prod......
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T.J.A. v. State, Case No. 2D04-3938 (FL 4/21/2006), Case No. 2D04-3938.
...elapsed since the date of the adjudicatory hearing would frustrate reconstruction efforts at this time. See, e.g., Simmons v. State, 200 So. 2d 619, 621 (Fla. 1st DCA 1967) (declining to remand for reconstruction based on the length of time that had elapsed since trial and reversing for a n......
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Murphy v. State
...3d DCA 1996); Fairell v. State, 662 So.2d 428 (Fla. 3d DCA 1995); Felton v. State, 523 So.2d 775 (Fla. 3d DCA 1988); Simmons v. State, 200 So.2d 619 (Fla. 1st DCA 1967). Accordingly, the conviction and sentence below are vacated and the cause is remanded for a new Motion for new trial grant......