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Appendix 1

Supreme Court of Florida

Letter of Referral

August 15, 2006

Supreme Court of Florida 500 South Duval Street

Tallahassee, Florida 32399-1925

R. FRED LEWIS

CHIEF JUSTICE

CHARLES T. WELLS

HARRY LEE ANSTEAD

BARBARA J. PARIENTE

PEGGY A. QUINCE

RAOUL G. CANTERO, III

KENNETH B. BELL

JUSTICES

August 15, 2006

THOMAS D. HALL

CLERK OF COURT

Mr. Edward Maurice Mullins

Chair, Appellate Court Rules Committee

701 Brickell Avenue, Floor 16

Miami, Florida 33131-2801

Re: Record in Post-Conviction Death Cases

Dear Mr. Mullins:

At the direction of the Court, I am writing to you in your capacity as Chair

of the Appellate Court Rules Committee to ask that the committee propose

amendments to the appellate rules regarding the record in post-conviction death

cases. The criminal rules presently require that, in rendering its order after an

evidentiary hearing in a post-conviction death case, the trial court shall “attach[] or

referenc[e] such portions of the record as are necessary to allow for meaningful

appellate review.” Fla. R. Crim. P. 3.851(f)(5)(D) (emphasis added) (silent as to

requirements in this regard when no evidentiary hearing is held). The appellate

rules in turn contemplate “preparation of the complete record for timely filing in

the supreme court.” Fla. R. App. P. 9.142(a)(1) (emphasis added) (drawing no

distinction between when an evidentiary hearing is or is not held).

Reading these rules together leaves many unanswered and intertwined

questions, including: what is the “complete” record in this context when the trial

court only “references,” but does not attach, portions of the record in rendering its

order? Should the entire record from the underlying initial appeal, including

exhibits, be automatically included in the post-conviction record? If so, how best

would that be achieved; if not, what, if anything, should be automatically included

Mr. Edward Maurice Mullins

August 15, 2006

Page: 2

in the post-conviction record? Does or should it make a difference if an

evidentiary hearing is not held?

The Court asks that the committee consider these and any other related

questions that may arise in proposing amendments to the appellate rules that

address and resolve these ambiguities. In so doing, the Court requests that the

committee compare and contrast parallel rules in non-death cases. See, e.g., Fla.

R. Crim. P. 3.850(d); Fla. R. App. P. 9.141(b). Finally, the Court requests that the

committee include its proposed amendments concerning this matter in its next

regular-cycle submission to the Court, unless it determines that the proposed

changes should be considered out-of-cycle.

Should you have any questions, please do not hesitate to contact me or

Justice Wells, who is the liaison to your Committee. I can meet with the full

committee or the criminal subcommittee to further address any questions you may

have.

Most cordially,

Thomas D. Hall

TDH/gp/sb

cc: Justice Charles T. Wells, Liaison to Committee

Joanna Mauer, Bar Staff Liaison

Deborah J. Meyer, Director of Central Staff

Appendix 2

Criminal Law Rules Subcommittee Report

With Attachments

1

APPELLATE COURT RULES COMMITTEE

CRIMINAL LAW RULES SUBCOMMITTEE

Subcommittee Report

December 18, 2007

Submitted by Calianne P. Lantz, Subcommittee Chair

The Subcommittee has worked on two issues since the last meeting of

the full committee: (1) A referral from the Florida Supreme Court prompted

by a letter from James E. Jacobs, Assistant Public Defender, Twelfth

Judicial Circuit concerning adopting a “claim of appeal” form similar to one

used in Michigan; and (2) A referral from the Florida Supreme Court

regarding the record in postconviction death penalty cases.

The Subcommittee held telephonic conferences on September 26,

2007; October 31, 2007, November 14, 2007 and December 5, 2007. The

record on appeal issue was discussed at all meetings. The claim of appeal

issue was considered on October 31, 2007 (see, Minutes of all

teleconferences, Exhibits A,D,G,H , attached hereto).

* * *

II. Record in Appeals from Postconviction Proceedings in Death

Penalty Cases-Rules 9.141(b), 9.142, and 9.200

The Subcommittee also continued consideration of a referral from the

Supreme Court of Florida concerning the record in postconviction death

penalty cases. This matter was referred to the Committee in a letter dated

August 15, 2006. (See, Exhibit F, attached hereto). The Subcommittee is

proposing a rule amendment and committee note in response to the questions

and concerns about the record in postconviction death penalty cases posed

by the court in its letter.

Due to the seriousness and complexity of the issues presented, the

Subcommittee is proposing a rule amendment that is the product of many

meetings by the Subcommittee across the past two years. This issue was

discussed at all teleconferences commencing with the meeting of September

26, 2007. Subcommittee members Carol Dittmar, from the Attorney

General’s Office, and Dave Gemmer, from the Office of Capital Collateral

2

Regional Counsel, both practice capital litigation exclusively and initially

prepared joint recommendations for consideration by the Subcommittee.

Subcommittee member Porsche Shantz suggested incorporating in a

proposed rule, an Administrative Order from the Florida Supreme Court

dated July 6, 1995, regarding the compilation of a “complete” record in a

death penalty appeal. Ms. Shantz joined the other subcommittee members

on the Subcommittee’s drafting committee.

As a result of prior meetings and the work product of the drafting

conference, on December 5, 2007, the Subcommittee considered a finalized

draft of proposed Rule 9.142(a)(1), including a proposed committee note.

(See, Minutes of December 5, 2007 teleconference, Exhibit H, attached

hereto). During the course of the meeting, various subsections were

discussed and the final language was voted upon. David Gemmer moved

that Rule 9.142 (a) (1) be amended as proposed. Vice-Chair Carol Dittmar

seconded the proposal. The motion carried by a vote of 7 to 2. The

dissenters objected to the second sentence of proposed 9.142(a)(1)(C) as

redundant and unnecessary.

RULE PROPOSAL

The Subcommittee hereby proposes that Fla. R. App. P.

9.142(a)(1) be amended to read as follows:

9.142(a)(1)

(1) Record.

(A) When the notice of appeal is filed in the supreme court,

the chief justice will direct the appropriate chief judge of the circuit court to

monitor the preparation of the complete record for timely filing in the

supreme court. Transcripts of all proceedings conducted in the lower

tribunal shall be included in the record pursuant to these rules.

(B) The complete record in a death penalty appeal shall

include all items required by rule 9.200 and by any order issued by the

supreme court. In any appeal following the initial direct appeal, the record

transmitted shall begin with the most recent mandate issued by the supreme

court, or the most recent filing not already transmitted in a prior record in the

event the preceding appeal was disposed of without a mandate, and shall

exclude any materials already transmitted to the supreme court as the record

in any prior appeal.

3

(C) To ensure meaningful appellate review and to avoid

redundancy in the appellate records, the supreme court, when reviewing the

record in any death penalty appeal, shall take judicial notice of the appellate

records in all prior appeals and writ proceedings involving a challenge to the

same judgment of conviction and sentence of death. Appellate records

subject to judicial notice pursuant to this subdivision shall not be duplicated

in the record transmitted for the appeal under review.

COMMITTEE NOTE PROPOSAL

The Subcommittee recognized that the full Committee may or may

not authorize voting on Committee Notes, but decided to approve a proposed

Note for the full Committee’s consideration in order to address the specific

inquiries in the court’s letter. At the teleconference of December 5, 2007,

Gwendolyn Powell Braswell moved to adopt the last version of the proposed

Committee Note. Michael Ufferman seconded the motion. The motion

passed unanimously. (See, Minutes of December 5, 2007, Exhibit H).

David Gemmer then suggested a need for another sentence to confirm

that this rule does not limit the parties’ rights to modify directions to the

clerk or to seek supplementation under Rule 9.200. It was noted that this

could also be accomplished by changing the reference to items “required by

rule 9.200” in (B) to “required or authorized by rule 9.200,” but the

subcommittee was reluctant to get back into changes to the proposed rule

itself, having finally approved it. Due to the lateness of the hour, it was

agreed that Mr. Gemmer would refine the language of his proposal and that

a final vote as to the last sentence of the Committee Note would be taken via

e-mail.

Approximately an hour after conclusion of the meeting,

Subcommittee Chair Lantz circulated a proposed final sentence for the

Committee Note offered by Gemmer, which read: This rule does not limit

the authority to file directions pursuant to Fla. R. App. P. 9.200(a)(3), or to

correct or supplement the record pursuant to Fla. R. App. P. 9.200(f). The

motion passed, six to five to adopt this sentence. Those voting no (Kehoe,

Dittmar, Nunnelley, Armas and Hugentugler) found the sentence to be

unnecessary.

The Subcommittee hereby proposes that the following Committee

Note be adopted should Fla. R. App. P. 9.142(a)(1) be amended:

4

____ Amendment. Subdivision (a)(1) has been amended to clarify what is

meant by the phrase “complete record” in any death penalty appeal. A

“complete record” in a death penalty appeal includes all items required by

rule 9.200 and by any order issued by the supreme court, including any

administrative orders such as In Re: Record in Capital Cases (Fla. July, 6,

1995). It is necessary for transcripts of all hearings to be prepared and

designated for inclusion in the record in all death penalty cases, pursuant to

rules 9.200(b), 9.140(f)(2), and 9.142(a)(2), to ensure completeness for both

present and future review. The supreme court permanently retains the

records in all death penalty appeals and writ proceedings arising from a

death penalty case. See Fla. R. App. P. 9.140(f)(5); Fla. R. Jud. Admin.

2.430(e)(2). Such records are available to the supreme court when

reviewing any subsequent proceeding involving the same defendant without

the need for inclusion of copies of those records in the record for the appeal

under review. Subdivision (a)(1) does not limit the ability of the parties to

rely on prior appellate records involving the same defendant and the same

judgment of conviction and sentence of death. Subdivision (a)(1)(B) is

intended to ensure, among other things, that all documents filed in the lower

tribunal pursuant to Fla. R. Crim. P. 3.852 are included in the records for all

appeals from final orders disposing of motions for post-conviction relief

filed pursuant to Fla. R. Crim. P. 3.851. This rule does not limit the authority

to file directions pursuant to Fla. R. App. P. 9.200(a)(3), or to correct or

supplement the record pursuant to Fla. R. App. P. 9.200(f).

5

EXHIBIT A

. MINUTES OF ACRC CRIMINAL SUBCOMMITTEE

On Wednesday, Sept. 26, 2007, at 2:00 pm, the ACRC Criminal

Subcommittee held a telephonic meeting to discuss the referral from the

Florida Supreme Court with regard to the proper record on appeal in a

capital postconviction case. The meeting was attended by: Calianne Lantz,

chair; Porsche Shantz; Susan Wright; Gwendolyn Powell Braswell; David

Gemmer; Carol Dittmar; Susan Hugentugler; Terry Kehoe; Fran Toomey;

Michael Ufferman; Maria Armas; Bill Kent; and Fleur Lobree, liaison from

the Criminal Procedure Rules Committee. Dorothy Easley and Ken

Nunnelley were excused. Dittmar agreed to take minutes. A quorum having

been reached, discussion followed:

The subcommittee reviewed several documents as background information,

including the referral letter from the Florida Supreme Court and a proposed

modification to Rule 9.142(a)(1), which was drafted jointly by Gemmer and

Dittmar and circulated prior to the meeting (see attached draft). Discussion

ensued as to proposed 9.142(a)(1)(B), which provided that a direct appeal

record should include all items designated by Rule 9.200, “including

transcripts of all hearings conducted in the lower tribunal.” Concern was

expressed as to whether this would require transcription of hearings that had

not otherwise been transcribed, or if the language should reflect that only

those transcripts already filed with the clerk be included. Consideration was

given to placing the burden on the appellant to designate the hearings, or

providing the possibility of supplementing the record. It was noted that the

referral only requests consideration of postconviction records, and the

proposed (B) on direct appeal was primarily drafted as a lead in to (C),

relating to postconviction records. Ultimately a motion was offered by

Kehoe, seconded by Armas, to modify proposed 9.142(a)(1)(B) to read: “In

a direct appeal, the complete record shall be prepared pursuant to Rule

9.200.” The motion passed unanimously.

Attention turned to (C), relating to postconviction records. There was

extensive discussion as to the need to include documents and transcripts

from the direct appeal record as part of the postconviction record. The

current practice was identified as permitting the parties and the Florida

6

Supreme Court to rely on and cite to the direct appeal record, although that

record is technically outside of the actual postconviction record. Although

the direct appeal record is to be permanently retained in archives, there was

great concern expressed about the informal practice of reliance on a record

outside the actual postconviction record in resolving postconviction issues.

There was a question as to whether the standard of review for the summary

denial of claims is affected if the direct appeal record is “automatically”

added, since the present standard requires remand unless the record

conclusively demonstrates that no relief is warranted. At the same time,

subcommittee members questioned the need for public expense to recopy a

lengthy record which is already available to the parties and the appellate

court.

There was also discussion with regard to whether the rule should address

review of claims denied following an evidentiary hearing as a separate

matter from review of summarily denied postconviction motions. Gemmer

offered to draft another proposal attempting to incorporate some of the

concerns discussed. The subcommittee will meet again to discuss this issue

after the next draft has been circulated.

Lantz announced that the subcommittee will be receiving at least one and

possibly two new referrals for consideration. She will circulate possible

dates for our next meeting.

Meeting was ADJOURNED at 3:40 pm.

7

EXHIBIT D


On Wednesday, Oct. 31, 2007, at 2:00 pm, the ACRC Criminal

Subcommittee held a telephonic meeting to discuss two referrals. The

meeting was attended by: Calianne Lantz, chair; Porsche Shantz; Susan

Wright; David Gemmer; Carol Dittmar, vice-chair; Terry Kehoe, vice-chair;

Dorothy Easley; Ken Nunnelley; Gwendolyn Powell Braswell; and Michael

Ufferman. In addition, Fleur Lobree, liaison from the Criminal Procedure

Rules Committee, and Angelica Zayas, from a Criminal Rules subcommittee

also considering one of the referrals, were in attendance. Fran Toomey and

Al Gayoso were excused. Dittmar agreed to take minutes. Lantz noted a

quorum had been reached and opened the meeting.

* * *

2. Referral from the Florida Supreme Court regarding capital

postconviction appeal records

The second referral was previously addressed by the subcommittee on Sept.

26, 2007. Following that meeting, the following documents were circulated

to subcommittee members: 1) a modified draft of the previous proposal

submitted by Gemmer and Dittmar; 2) an Administrative Order from the

Florida Supreme Court dated July 6, 1995, regarding the compilation of a

“complete” record in a death penalty appeal; and 3) a new proposed rule

amendment in Rule 9.142 incorporating the record as defined by the

Administrative Order (documents attached as Ex. B-1, B-2, and B-3 to these

minutes).

Porsche Shantz had discovered the Administrative Order and drafted the

new proposed rule conforming to the order, but not all members had the

opportunity to review her information prior to the meeting. It was noted that

the Administrative Order would include some documents in the “complete

record” that are specifically excluded under Rule 9.200(a)(1), such as

subpoenas, depositions, and other discovery. This may compel

reconsideration of Gemmer’s draft, stating the direct appeal record is to be

compiled pursuant to 9.200. There was limited discussion as to whether

some modification to 9.200 or 9.140, governing the record in criminal

appeals, should be offered.

8

One of the differences between the Shantz draft and the Gemmer draft is that

the Gemmer draft starts the postconviction record when the direct appeal

mandate is received, but the Shantz draft starts the postconviction record

with the filing of the postconviction motion being appealed. Several

members noted that, due to the litigation that occurs prior to the filing of the

postconviction motion, including public records and other preliminary

issues, a complete postconviction record should start following the mandate.

However, simply referencing the mandate may create difficulty if there has

been more than one appeal and therefore more than one mandate filed,

whether due to a resentencing or prior postconviction proceedings. One

suggestion was to start the appeal from the “most recent” mandate for the

lower tribunal case number, or the “last” mandate filed. Another idea,

building on the Gemmer draft, was to modify (C) to begin, “In an initial

postconviction appeal” and then clarify later that in subsequent

postconviction appeals, prior records need not be duplicated.

Most members agreed on subsection (D) in the Gemmer draft, although it

was noted that the phrase prior records were “deemed incorporated in the

complete record” was repeated in the last sentence. Gemmer offered to

delete the last sentence of (D) to eliminate this redundancy.

There was also some discussion as to whether we can/should offer a

Committee Note, such as included in the Gemmer draft. There was a

suggestion that the Committee Note be included in our recommendation to

the full committee, subject to whatever decision is ultimately made on that

issue by the full committee.

Members recognized that it would be helpful to have a new draft which

blends the two currently under consideration. Gemmer, Dittmar and Shantz

will work together to create a new proposal to be circulated prior to the next

meeting.

Lantz inquired as to potential dates for another meeting. She will check on

availability and circulate possible dates.


9

EXHIBIT G


On Wednesday, Nov. 14, 2007, at 2:00 pm, the ACRC Criminal

Subcommittee held a telephonic meeting to continue discussion of the FSC

referral regarding records in capital postconviction appeals. The meeting

was attended by: Calianne Lantz, chair; Carol Dittmar, vice-chair; Porsche

Shantz; Al Gayoso; Susan Wright; David Gemmer; Dorothy Easley;

Gwendolyn Powell Braswell; Fran Toomey; Michael Ufferman; Maria

Armas; and Fleur Lobree, liaison from the Criminal Procedure Rules

Committee, were in attendance. Terry Kehoe, vice-chair; Ken Nunnelley;

Susan Hugentugler; and Lisa Walsh were excused. Dittmar agreed to take

minutes. Lantz noted a quorum had been reached and opened the meeting.

Prior to the hearing, a modified draft of the previous proposal submitted by

Shantz, Gemmer and Dittmar was circulated, along with the minutes of the

Oct. 31, 2007 telephonic meeting. The draft as circulated is attached.

The subcommittee first considered the following language, proposed as an

additional sentence for 9.142(a)(1)(A): Transcripts of all hearings

conducted in the lower tribunal shall be prepared and designated for

inclusion in the record pursuant to these rules.

Fleur Lobree related concerns that requiring transcriptions of all hearings

will create more delay, noting her experience in cases where the record has

been delayed only in an attempt to secure transcripts of hearings where

nothing of import occurred. She suggested that many problems with capital

records stemmed from difficulties with court reporters, and could not be

remedied by rule. Others on the subcommittee felt that, despite some delay,

the Florida Supreme Court and most litigants wanted to have the entire

record available for the Court’s consideration. Powell Braswell also

expressed concern that the proposed sentence was ambiguous, questioning

whether it was directing that all transcripts be included in the record or just

be transcribed and prepared for inclusion if designated.

An alternative suggestion was to incorporate the particular language of the

Florida Supreme Court’s Administrative Order of July, 1995 (attached as

10

Ex. B-3 to Oct. 31, 2007 minutes) into the proposed rule. That Order

expressly provides that transcripts of “all pretrial, voir dire, trial, sentencing,

and posttrial proceedings, including all bench conferences, motions, and

status hearings whether in open court or in chambers” and “all tapes played

in court” be included in the record.

Ultimately, Shantz made a motion to adopt the language in Rule

9.142(a)(1)(A), as proposed and noted above; Ufferman seconded. The

motion carried nine to one.

Discussion turned to proposed (B), relating to direct appeals. Lobree

suggested that sections (A) and (F) offered everything we needed in the rule,

and most of the subcommittee agreed that the draft as currently written is

unwieldy and overly complicated.

The subcommittee considered the best language to use in referring to the

mandate, “most recent” or “latest filed,” and settled on most recent. There

was also discussion as to the best way to incorporate any administrative

orders, whether standing orders such as that issued in July 1995 or case-

specific orders directed at compiling a particular record. The July 1995

Order is specified in the proposed Committee Note, but the subcommittee

did not want to preclude the application of any other relevant orders,

particularly if a new standing order is rendered. Easley and Powell Braswell

both circulated proposals via email as we met. Following editing changes, a

new proposed (B) was presented for consideration:

In a direct appeal from a judgment of conviction and sentence, or a

judgment entered following a retrial or resentencing, the complete record

shall include all items required by rule 9.200 and by any order, including an

administrative order, issued by the supreme court. If the direct appeal is

from a judgment entered following a retrial or resentencing, then the

complete record shall begin with the most recent mandate issued by the

supreme court.

Dittmar made a motion to adopt this proposed language, which was

seconded by Easley, and passed unanimously.

As to subsection (C), the subcommittee agreed we should mirror the changes

made to (B). Again, real-time editing took place as some proposals were

circulated by email. The final draft was considered as follows:

11

In an appeal from a final order disposing of an initial motion for post-

conviction relief filed pursuant to Florida Rule of Criminal Procedure

3.851, the complete record shall include all items required by rule 9.200 and

by any order, including an administrative order, issued by the supreme

court, beginning with the direct appeal mandate. In any case where retrial

or resentencing has occurred, the record shall begin with the most recent

direct appeal mandate issued by the supreme court.

There was a recognized need to streamline and simplify the proposed draft.

At this point, several subcommittee members needed to leave the meeting,

and there was a concern that there would no longer be a quorum. A decision

was made that the Draft Committee (Shantz, Gemmer and Dittmar) should

continue to work on the proposal, and we will try to meet again in early

December.

Lantz will check on the availability of Dec. 5 for the next meeting and

contact members by email with the response.


12

EXHIBIT H


On Wednesday, Dec. 5, 2007, at 2:00 pm, the ACRC Criminal

Subcommittee held a telephonic meeting to continue discussion of the FSC

referral regarding records in capital postconviction appeals. The meeting

was attended by: Calianne Lantz, chair; Terry Kehoe, vice-chair; Carol

Dittmar, vice-chair; Porsche Shantz; Susan Wright; David Gemmer;

Gwendolyn Powell Braswell; Fran Toomey; Michael Ufferman; Ken

Nunnelley; and Fleur Lobree, liaison from the Criminal Procedure Rules

Committee. Dorothy Easley, Maria Armas and Susan Hugentugler were

excused. Dittmar agreed to take minutes. Lantz noted a quorum had been

reached and opened the meeting.

Prior to the hearing, another revised draft of the previous proposal submitted

by Shantz, Gemmer and Dittmar was circulated, along with the minutes of

the Nov. 14, 2007 telephonic meeting. The draft rule 9.142(a)(1) as

circulated is attached.

Initially, Lantz noted that Joanna Mauer had distributed an alert reminding

Committee members that the issue of voting on committee notes would be

discussed at the Committee meeting in January. As a result, whatever action

we take on adopting a committee note to draft rule 9.142(a)(1) may be

subject to whatever procedures may be adopted on voting for committee

notes.

Gemmer outlined changes to the new draft, which was streamlined and

discusses general principles rather than trying to address each different type

of proceeding with a different subsection. In addition, Shantz had confirmed

with Tom Hall that the Florida Supreme Court sometimes resolves capital

postconviction appeals through disposition order rather than opinion, and no

mandate is issued. Alternative language has been added to the draft to

encompass cases where appeals have been resolved but no mandate was

issued. It was noted that the draft as circulated has bold language or strike-

throughs, but this was just to identify changes to prior drafts as the proposal

was circulated among Gemmer, Shantz and Dittmar. Our final proposal to

the committee will be clean and in proper form.

13

The subcommittee then reconsidered the following language, previously

accepted as an additional sentence for 9.142(a)(1)(A): Transcripts of all

hearings conducted in the lower tribunal shall be prepared and designated

for inclusion in the record pursuant to these rules.

Discussion ensued as to the meaning of “prepared and designated” for

purposes of the draft. There was concern expressed with the ambiguity and

whether this was necessary and appropriate in the context of the rule. In

addition, there was a question of whether the reference to “hearings” should

be changed to “proceedings,” so as to encompass status conferences or other

court events that may not be considered a hearing, and the subcommittee

agreed to the broader language. Kehoe made a motion, seconded by Shantz,

to adopt this sentence as: Transcripts of all proceedings conducted in the

lower tribunal shall be included in the record pursuant to these rules. The

motion passed unanimously.

Discussion turned to (B). Gemmer read this subsection as proposed:

The complete record in a death penalty appeal shall include all items

required by rule 9.200 and by any order, including an administrative order,

issued by the supreme court. In any appeal following the initial direct

appeal, the record shall begin with the most recent mandate issued by the

supreme court, or the most recent filing not already transmitted in a prior

record in the event the preceding appeal was disposed of without a mandate,

and shall exclude any materials already transmitted to the supreme court as

the record in any prior appeal.

It was noted that an administrative order would be an order issued by the

Florida Supreme Court and therefore that language was superfluous.

Initially the intent was to incorporate the 1995 administrative order, which is

also referenced in the proposed committee note, as well as any such future

order. In light of the committee note reference, several members agreed the

language “including an administrative order” was unnecessary. In addition,

the subcommittee considered the suggestion that the second sentence,

expressly “excluding” material previously transmitted, may be read as

precluding any use of this material. To clarify this subsection applied to the

“record” as sent to the Florida Supreme Court, it was recommended the

word “transmitted” be inserted where the record is referenced early in the

sentence. Another suggestion was that the language within the commas

proposed to cover non-mandate situations could be placed within

14

parentheses instead, but Lantz advised that parentheses would not be

appropriate in a rule.

Ultimately, a motion was made by Gemmer, seconded by Shantz, to adopt

(B) as follows: The complete record in a death penalty appeal shall include

all items required by rule 9.200 and by any order issued by the supreme

court. In any appeal following the initial direct appeal, the record


court, or the most recent filing not already transmitted in a prior record in

the event the preceding appeal was disposed of without a mandate, and shall

exclude any materials already transmitted to the supreme court as the

record in any prior appeal. The motion passed unanimously.

It was noted that changing the format of the proposed rule away from

identifying specific proceedings makes no special provision for records

prepared for an appeal from a ruling on a motion for postconviction DNA

testing under Rule 3.853. The subcommittee determined that it was

unnecessary to address that issue particularly, and may be beyond the scope

of the referral before us.

Consideration turned to subsection (C), which Gemmer read as proposed:

To ensure meaningful appellate review and to avoid redundancy in the

appellate records, the supreme court, when reviewing the record in any

death penalty appeal, shall take judicial notice of the appellate records in all

prior appeals and extraordinary writ proceedings involving a challenge to

the same judgment of conviction and sentence of death. Appellate records


and included in the record for the appeal under review if those records are

subject to permanent retention by the supreme court pursuant to rule

9.140(f)(5) and the Florida Rules of Judicial Administration.

There was a recommendation that the reference to writ proceedings omit the

word “extraordinary,” so that all original proceedings are included. This is

consistent with the language of Rule 9.100, which does not refer to

extraordinary writs. It was noted that the language was intended to be broad

enough to cover successive postconviction appeals as well as any other

appeals. There was also consideration as to whether it was necessary to

include the qualification that records need not be duplicated “if subject to

permanent retention,” based on information from Tom Hall that all records

in all death penalty cases are to be permanently retained. Although it was

15

suggested that the language was helpful because the Florida Supreme Court

is a separate entity and does not necessarily control the department

maintaining the archives, most subcommittee members felt this language

was unnecessary in the rule. It was noted that adding “transmitted” after

record, as we did in (B), may help again to clarify we are addressing the

record as actually sent to the Court, and not the entire record as judicially

noticed and available for the parties to rely on.

A motion was made by Kehoe, seconded by Ufferman, to adopt proposed

(C) as follows: To ensure meaningful appellate review and to avoid



records in all prior appeals and writ proceedings involving a challenge to

the same judgment of conviction and sentence of death. Appellate records


in the record transmitted for the appeal under review. The motion passed

unanimously.

At this point, Gemmer read the entire proposed Rule 9.142(a)(1), as

approved by the subcommittee, for final comment:

9.142(a)(1)

(1) Record.




supreme court. Transcripts of all proceedings conducted in the lower

tribunal shall be included in the record pursuant to these rules.









(C) To ensure meaningful appellate review and to avoid



records in all prior appeals and writ proceedings involving a challenge to the

16

same judgment of conviction and sentence of death. Appellate records


in the record transmitted for the appeal under review.

There was continued discussion about the last sentence of (C) being

repetitive of (B) with regard to avoiding duplication of prior records. It was

suggested that (B) is directed to the clerks preparing the records and (C) is

directed more to the parties, explaining the reasoning for (B) and the record

available for referencing to the Florida Supreme Court. The subcommittee

recognizes the repetition in (B) and (C) but felt it is warranted to make the

point clear, especially to clerks that might not be as familiar with the law as

the parties. Gemmer made a motion to adopt the proposed rule as read

above, seconded by Dittmar. The motion carried by a vote of 7 to 2. The

dissenters, Toomey and Powell Braswell, objected to the second sentence of

(C) as redundant and unnecessary.

Discussion turned to the proposed Committee Note. Again, the

subcommittee recognized that the full Committee may or may not authorize

voting on Committee Notes, but decided to approve a proposed Note for the

full Committee’s consideration. The Committee Note as proposed read:






1995). Due to the heightened review given death penalty cases, it is

necessary for transcripts of all hearings to be prepared and designated for

inclusion in the record in all death penalty cases, pursuant to rules 9.200(b),

9.140(f)(2), and 9.142(a)(2), to ensure completeness for both present and

future review. Because the supreme court permanently retains the records

in all death penalty appeals and extraordinary writ proceedings arising

from a death penalty case, see Fla. R. App. P. 9.140(f)(5); Fla. R. Jud.

Admin. 2.430(e)(2), such records are available to the supreme court when







tribunal pursuant to Fla. R. Crim. P. 3.852 are included in the records for

17

all appeals from final orders disposing of motions for post-conviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.851. Subdivision

(a)(1)(C) memorializes includes a practice already routinely employed by

the supreme court.

Kehoe recommended taking out the reference to the heightened review given

death cases. Powell Braswell noted the need to remove “extraordinary” with

the writ reference. Other editorial suggestions included breaking up the

sentence about the Florida Supreme Court retaining the records and making

two sentences from those comments; abbreviating the reference to Rule

3.851 to be consistent with other references to other rule provisions; and

eliminating the last sentence as unnecessary. Powell Braswell made a

motion, seconded by Ufferman, to approve the proposed Committee Note as

follows:







designated for inclusion in the record in all death penalty cases, pursuant to

rules 9.200(b), 9.140(f)(2), and 9.142(a)(2), to ensure completeness for both



death penalty case. See Fla. R. App. P. 9.140(f)(5); Fla. R. Jud. Admin.








tribunal pursuant to Fla. R. Crim. P. 3.852 are included in the records for all

appeals from final orders disposing of motions for post-conviction relief

filed pursuant to Fla. R. Crim. P. 3.851.

The motion passed unanimously and the Committee Note was approved.

18

Gemmer suggested a need for another sentence to confirm that this rule does

not limit the parties’ rights to modify directions to the clerk or to seek

supplementation under Rule 9.200. It was noted that this could also be

accomplished by changing the reference to items “required by rule 9.200” in

(B) to “required or authorized by rule 9.200,” but the subcommittee was

reluctant to get back into changes to the proposed rule itself, having finally

approved it. Gemmer will forward a proposed final sentence for

consideration, and vote will be taken via email. Lantz thanked everyone for

their hard work on this issue.


POSTSCRIPT:

Approximately an hour after conclusion of the meeting, Lantz circulated a

proposed final sentence for the Committee Note offered by Gemmer, which

read: This rule does not limit the authority to file directions pursuant to Fla.

R. App. P. 9.200(a)(3), or to correct or supplement the record pursuant to

Fla. R. App. P. 9.200(f). The motion passed, six to five to adopt this

sentence, which will be added to the end of the proposed Committee Note.

Those voting no (Kehoe, Dittmar, Nunnelley, Armas and Hugentugler)

found the sentence to be unnecessary.

Appendix 3

Appellate Court Rules Committee

Pertinent Excerpts of Minutes

January 18, 2008 Midyear Meeting

1

PERTINENT EXCERPT OF MINUTES

APPELLATE COURT RULES COMMITTEE FRIDAY, JANUARY 18, 2008

III. STANDING SUBCOMMITTEE ISSUES AND REPORTS

C. Criminal Practice Subcommittee – Chair, Calianne Lantz

3. Vote by the full ACRC on the proposed amendment to Rule

9.142(a)(1). (See Report at 78-79.)

The proposed Rule amendment and Committee Note proposal were set forth

in pages 78-80 of the January 18, 2007 Agenda Packet and are as follows:

RULE PROPOSAL

9.142(a)(1)

(1) Record.

(A) When the notice of appeal is filed in the supreme

court, the chief justice will direct the appropriate chief judge of the

circuit court to monitor the preparation of the complete record for

timely filing in the supreme court. Transcripts of all proceedings

conducted in the lower tribunal shall be included in the record

pursuant to these rules.

(B) The complete record in a death penalty appeal

shall include all items required by rule 9.200 and by any order issued

by the supreme court. In any appeal following the initial direct

appeal, the record transmitted shall begin with the most recent

mandate issued by the supreme court, or the most recent filing not

already transmitted in a prior record in the event the preceding appeal

was disposed of without a mandate, and shall exclude any materials

already transmitted to the supreme court as the record in any prior

appeal.

(C) To ensure meaningful appellate review and to

avoid redundancy in the appellate records, the supreme court, when

reviewing the record in any death penalty appeal, shall take judicial

notice of the appellate records in all prior appeals and writ

proceedings involving a challenge to the same judgment of conviction

and sentence of death. Appellate records subject to judicial notice

pursuant to this subdivision shall not be duplicated in the record

transmitted for the appeal under review.

2

The Subcommittee recognized that the full Committee may or may not

authorize voting on Committee Notes, but decided to approve a proposed Note for

the full Committee’s consideration in order to address the specific inquiries in the

court’s letter. At the teleconference of December 5, 2007, Gwendolyn Powell

Braswell moved to adopt the last version of the proposed Committee Note.

Michael Ufferman seconded the motion. The motion passed unanimously.

David Gemmer then suggested a need for another sentence to confirm that

this rule does not limit the parties’ rights to modify directions to the clerk or to

seek supplementation under Rule 9.200. Subcommittee Chair Lantz circulated a

proposed final sentence for the Committee Note offered by Gemmer, which read:

This rule does not limit the authority to file directions pursuant to Fla.

R. App. P. 9.200(a)(3), or to correct or supplement the record

pursuant to Fla. R. App. P. 9.200(f).

The motion passed, 6 in favor:5 opposed to adopt this sentence. Those voting

against the Note found the sentence to be unnecessary. The proposed Committee

Note is as follows:

Amendment. Subdivision (a)(1) has been amended to clarify what is

meant by the phrase “complete record” in any death penalty appeal.

A “complete record” in a death penalty appeal includes all items

required by rule 9.200 and by any order issued by the supreme court,

including any administrative orders such as In Re: Record in Capital

Cases (Fla. July, 6, 1995). It is necessary for transcripts of all

hearings to be prepared and designated for inclusion in the record in

all death penalty cases, pursuant to rules 9.200(b), 9.140(f)(2), and

9.142(a)(2), to ensure completeness for both present and future

review. The supreme court permanently retains the records in all

death penalty appeals and writ proceedings arising from a death

3

penalty case. See Fla. R. App. P. 9.140(f)(5); Fla. R. Jud. Admin.


reviewing any subsequent proceeding involving the same defendant

without the need for inclusion of copies of those records in the record

for the appeal under review. Subdivision (a)(1) does not limit the

ability of the parties to rely on prior appellate records involving the

same defendant and the same judgment of conviction and sentence of

death. Subdivision (a)(1)(B) is intended to ensure, among other

things, that all documents filed in the lower tribunal pursuant to Fla.

R. Crim. P. 3.852 are included in the records for all appeals from final

orders disposing of motions for post-conviction relief filed pursuant to

Fla. R. Crim. P. 3.851. This rule does not limit the authority to file

directions pursuant to Fla. R. App. P. 9.200(a)(3), or to correct or


The Subcommittee proposed that the above Committee Note, as set forth on

page 80 in the Agenda Packet, be adopted should Fla. R. App. P. 9.142(a)(1) be

amended.

Chair Brannock suggested we first entertain a motion on the proposed Rule

9.142(a)(1) amendment before reaching the Committee Note, then proceed to the

I.O.P. Subcommittee to consider the proposed amendment regarding Committee

Notes and whether we vote on comments. On reaching that I.O.P. vote, Chair

Brannock suggested we return, depending on the outcome of the I.O.P. vote, to

vote on the proposed Rule 9.142(a)(1) Committee Note.

The Subcommittee moved to adopt the proposed Rule 9.142(a)(1)

amendment, which motion was seconded and the floor was opened for discussion.

Paul Regensdorf stated that the language of Rule 9.142(a)(1)(C) reflected the

commentary of a well-written law review article or case comment, but was not

4

worded like a rule. Proposed Rule 9.142(a)(1)(C) was too soft and not rule-like.

Subcommittee Chair Lantz explained that this was compromise language and

invited David Gemmer and Carole Dittmar to discuss any additional points

regarding that.

Ed Mullins commented that he agreed with Paul Regensdorf and moved to

amend the proposed Rule 9.142(a)(1)(C) amendment, which motion Kimberly

Ashby seconded. Gemmer commented that the Subcommittee’s intent behind the

language in proposed Rule 9.142(a)(1)(C) was to get on record as much detail

regarding the purpose for this change to serve as guidance for purposes of

explaining to those reading the rule, including the clerks, what needed to be

included in the record regarding the most current appeal. Mullins responded that

this particular language could go into the Committee Note.

Terrence Kehoe commented that guidance on record composition was

especially important in this Rule because these types of criminal appeals are

different from civil appeals in that these appeals go on for years and years. Kehoe

continued that the reason for the Rule 9.142(a)(1)(C) language was that we did not

want the clerk to have to recopy the records when assembling the record for a Rule

9.142 appeal. Our experience in handling these types of appeals, Kehoe explained,

is that, in actual practice, the clerk ends up recopying and recopying the same

record, making it unnecessarily laborious, voluminous and unwieldy when, in fact,

we just want the clerk to create a new record consisting of what was litigated for

5

this specific proceeding giving rise to this particular appeal, and not include and

recopy what is already in existence. Robert Pritt agreed with Kehoe, but

commented that, if that is the reason for that language, we needed to clarify the

Rule 9.142(a)(1)(C) language.

Mullins moved to put that language in Rule 9.142(a)(1)(C) in the Committee

Note comments. Subcommittee Chair Lantz responded that, in light of the pending

proposed Committee Note amendment to the I.O.P.s, we did not know where we

stood on Committee Notes, but agreed that Rule 9.142(a)(1)(C)’s language was

intended to be a message to guide the clerks on record composition. Vice Chair

John Crabtree commented that the concern is that if we don’t clarify then we get

redundancy. Porsche Shantz, who assisted in drafting this language, responded

that she had no objection to Mullin’s amendment.

Regensdorf’s amendment to proposed Rule 9.142(a)(1)(C), to remove the

first clause in (C)—“To ensure meaningful appellate review and to avoid

redundancy in the appellate records,”--, passed 48 in favor:1 opposed. Sandy

Solomon commented that he did not believe the next comma clause was necessary

either, as “the supreme court shall take judicial notice” seemed sufficient. The

amendment to proposed Rule 9.142(a)(1)(C), to remove the second comma clause

in (C)—“, when reviewing the record in any death penalty appeal,”—,passed

unanimously, with 48 in favor:0 opposed. The proposed Rule 9.142(a)(1)

amendment now reads as follows:

6

Rule 9.142(a)(1)

(1) Record.


court, the chief justice will direct the appropriate chief judge of the

circuit court to monitor the preparation of the complete record for

timely filing in the supreme court. Transcripts of all proceedings

conducted in the lower tribunal shall be included in the record

pursuant to these rules.


shall include all items required by rule 9.200 and by any order issued

by the supreme court. In any appeal following the initial direct

appeal, the record transmitted shall begin with the most recent

mandate issued by the supreme court, or the most recent filing not

already transmitted in a prior record in the event the preceding appeal

was disposed of without a mandate, and shall exclude any materials

already transmitted to the supreme court as the record in any prior

appeal.

(C) To ensure meaningful appellate review and to

avoid redundancy in the appellate records, the supreme court, when

reviewing the record in any death penalty appeal, shall take judicial

notice of the appellate records in all prior appeals and writ

proceedings involving a challenge to the same judgment of conviction

and sentence of death. Appellate records subject to judicial notice

pursuant to this subdivision shall not be duplicated in the record


To address the proposed Rule 9.142(a)(1) Committee Note, the ACRC moved to

the I.O.P. proposed amendments (infra pages 35-42), and returned to address the

Committee Note on the I.O.P. amendments to require voting on Committee Notes.

With the I.O.P. amendment to require voting on Committee Notes having

been passed by the ACRC, Subcommittee Chair Lantz referred the ACRC to p. 80

of the Agenda Packet regarding the Committee Note and proposed that the

following Committee Note be adopted should Fla. R. App. P. 9.142(a)(1) be

amended:

7

Amendment. Subdivision (a)(1) has been amended to clarify what is

meant by the phrase “complete record” in any death penalty appeal.

A “complete record” in a death penalty appeal includes all items

required by rule 9.200 and by any order issued by the supreme court,

including any administrative orders such as In Re: Record in Capital

Cases (Fla. July, 6, 1995). It is necessary for transcripts of all

hearings to be prepared and designated for inclusion in the record in

all death penalty cases, pursuant to rules 9.200(b), 9.140(f)(2), and

9.142(a)(2), to ensure completeness for both present and future

review. The supreme court permanently retains the records in all

death penalty appeals and writ proceedings arising from a death

penalty case. See Fla. R. App. P. 9.140(f)(5); Fla. R. Jud. Admin.


reviewing any subsequent proceeding involving the same defendant

without the need for inclusion of copies of those records in the record

for the appeal under review. Subdivision (a)(1) does not limit the

ability of the parties to rely on prior appellate records involving the

same defendant and the same judgment of conviction and sentence of

death. Subdivision (a)(1)(B) is intended to ensure, among other

things, that all documents filed in the lower tribunal pursuant to Fla.

R. Crim. P. 3.852 are included in the records for all appeals from final

orders disposing of motions for post-conviction relief filed pursuant to

Fla. R. Crim. P. 3.851. This rule does not limit the authority to file

directions pursuant to Fla. R. App. P. 9.200(a)(3), or to correct or


Subcommittee Chair Lantz commented that it was the Subcommittee’s

understanding that records were retained through multiple appeals, so the proposed

Committee Notes reflected that clarification and that the reference to “complete

record” were not words of limitation, so that it is clear that one can rely on prior

appellate records and these prior appellate records can be included in the record for

this specific appeal if needed. The Subcommittee felt that this clarifying language

was the best way to address questions from the supreme court.

Chair Brannock opened the proposed Committee Note for discussion, to

8

which there was none. The motion to adopt the proposed Committee Note

carried, 49 in favor:1 opposed.

Appendix 4

Rule 9.142 Amendments

Full Page Format

RULE 9.142. PROCEDURES FOR REVIEW IN DEATH

PENALTY CASES

(a) Procedure in Death Penalty Appeals.

(1) Record.




supreme court. Transcripts of all proceedings conducted in the lower tribunal

shall be included in the record under these rules.









(C) The supreme court shall take judicial notice of the

appellate records in all prior appeals and writ proceedings involving a

challenge to the same judgment of conviction and sentence of death.

Appellate records subject to judicial notice under this subdivision shall not

be duplicated in the record transmitted for the appeal under review.

(2) Briefs; Transcripts. After the record is filed, the clerk will

promptly establish a briefing schedule allowing the defendant 60 days from

the date the record is filed, the state 45 days from the date the defendant’s

brief is served, and the defendant 30 days from the date the state’s brief is

served to serve their respective briefs. On appeals from orders ruling on

applications for relief under Florida Rule of Criminal Procedure 3.851 or

3.853, and on resentencing matters, the schedules set forth in rule 9.140(g)

will control. In addition to filing paper copies of transcripts, the court

reporter shall file with the clerk of the lower tribunal, on clearly labeled

computer disks in a format approved by the supreme court, sufficient copies

of these transcripts for the clerk of the lower tribunal to include the disks in

the record transmitted to the court and to the parties.

(3) Sanctions. If any brief is delinquent, an order to show cause

may issue under Florida Rule of Criminal Procedure 3.840, and sanctions

may be imposed.

(4) Oral Argument. Oral argument will be scheduled after the

filing of the defendant’s reply brief.

(5) Petitions for Extraordinary Relief. In death penalty cases, all

petitions for extraordinary relief over which the supreme court has original

jurisdiction, including petitions for writ of habeas corpus, shall be filed

simultaneously with the initial brief in the appeal from the lower tribunal’s

order on the defendant’s application for relief under Florida Rule of

Criminal Procedure 3.851.

(6) Scope of Review. In death penalty cases, whether or not

insufficiency of the evidence or proportionality is an issue presented for

review, the court shall review these issues and, if necessary, remand for the

appropriate relief.

(b) Petition Seeking Review of Nonfinal Orders in Death Penalty

Postconviction Proceedings.

(1) Applicability. This rule applies to proceedings that invoke the

jurisdiction of the supreme court for review of nonfinal orders issued in

postconviction proceedings following the imposition of the death penalty.

(2) Treatment as Original Proceedings. Review proceedings

under this subdivision shall be treated as original proceedings under rule

9.100 unless modified by this subdivision.

(3) Commencement; Parties.

(A) Jurisdiction of the supreme court shall be invoked by

filing a petition with the clerk of the supreme court within 30 days of

rendition of the nonfinal order to be reviewed. A copy of the petition shall be

served on the opposing party and furnished to the judge who issued the order

to be reviewed.

(B) Either party to the death penalty postconviction

proceedings may seek review under this rule.

(4) Contents. The petition shall be in the form prescribed by rule

9.100, and shall contain

(A) the basis for invoking the jurisdiction of the court;

(B) the date and nature of the order sought to be reviewed;

(C) the name of the lower tribunal rendering the order;

(D) the name, disposition, and dates of all previous trial,

appellate, and postconviction proceedings relating to the conviction and

death sentence that are the subject of the proceedings in which the order

sought to be reviewed was entered;

(E) the facts on which the petitioner relies, with references to

the appropriate pages of the supporting appendix;

(F) argument in support of the petition, including an

explanation of why the order departs from the essential requirements of law

and how the order may cause material injury for which there is no adequate

remedy on appeal, and appropriate citations of authority; and

(G) the nature of the relief sought.

(5) Appendix. The petition shall be accompanied by an appendix,

as prescribed by rule 9.220, which shall contain the portions of the record

necessary for a determination of the issues presented.

(6) Order to Show Cause. If the petition demonstrates a

preliminary basis for relief or a departure from the essential requirements of

law that may cause material injury for which there is no adequate remedy by

appeal, the court may issue an order directing the respondent to show cause,

within the time set by the court, why relief should not be granted. (7) Response. No response shall be permitted unless ordered by the court. (8) Reply. Within 20 days after service of the response or such

other time set by the court, the petitioner may serve a reply, which shall not

exceed 15 pages in length, and supplemental appendix. (9) Stay.

(A) A stay of proceedings under this rule is not automatic;

the party seeking a stay must petition the supreme court for a stay of

proceedings. (B) During the pendency of a review of a nonfinal order,

unless a stay is granted by the supreme court, the lower tribunal may

proceed with all matters, except that the lower tribunal may not render a

final order disposing of the cause pending review of the nonfinal order. (10) Other pleadings. The parties shall not file any other pleadings,

motions, replies, or miscellaneous papers without leave of court. (11) Time Limitations. Seeking review under this rule shall not

extend the time limitations in Florida Rule of Criminal Procedure 3.851 or

3.852. (c) Review of Dismissal of Postconviction Proceedings and Discharge

of Counsel in Florida Rule of Criminal Procedure 3.851(i) Cases. (1) Applicability. This rule applies when the circuit court enters an

order dismissing postconviction proceedings and discharging counsel under

Florida Rule of Criminal Procedure 3.851(i).

(2) Procedure Following Rendition of Order of Dismissal and Discharge. (A) Notice to Court. Within 10 days of the rendition of an

order granting a prisoner’s motion to discharge counsel and dismiss the

motion for postconviction relief, discharged counsel shall file with the clerk

of the circuit court 2 copies of a notice seeking review in the supreme court. (B) Transcription. The circuit judge presiding over any

hearing on a motion to dismiss and discharge counsel shall order a transcript

of the hearing to be prepared and filed with the clerk of the circuit court no

later than 25 days from rendition of the final order.

(C) Record. Within 30 days of the granting of a motion to

dismiss and discharge counsel, the clerk of the circuit court shall forward a

copy of the motion, order, and transcripts of all hearings held on the motion

to the clerk of the supreme court.

(D) Proceedings in Supreme Court. Within 20 days of the

filing of the record in the supreme court, discharged counsel shall serve an

initial brief. Both the state and the prisoner may serve responsive briefs. All

briefs must be served and filed as prescribed by rule 9.210.

(d) Petitions Seeking Belated Appeal. A petition for belated appeal

shall not be filed more than 1 year afte the expiration of time for filing the

notice of appeal from a final order denying rule 3.851 relief, unless it alleges

under oath with a specific factual basis that the petitioner

(1) was unaware an appeal had not been timely filed or was not

advised of the right to an appeal; and

(2) should not have ascertained such facts by the exercise of

reasonable diligence.

Committee Notes

2009 Amendment. Subdivision (a)(1) has been amended to clarify

what is meant by the phrase “complete record” in any death penalty appeal.

A complete record in a death penalty appeal includes all items required by


administrative orders such as In Re: Record in Capital Cases (Fla. July 6,


designated for inclusion in the record in all death penalty cases under rules

9.200(b), 9.140(f)(2), and 9.142(a)(2), to ensure completeness for both



death penalty case. See rule 9.140(f)(5); Florida Rule of Judicial

Administration 2.430(e)(2). These records are available to the supreme court

when reviewing any subsequent proceeding involving the same defendant

without the need for inclusion of copies of these records in the record for the

appeal under review. Subdivision (a)(1) does not limit the ability of the

parties to rely on prior appellate records involving the same defendant and

the same judgment of conviction and sentence of death. Subdivision

(a)(1)(B) is intended to ensure, among other things, that all documents filed

in the lower tribunal under Florida Rule of Criminal Procedure 3.852 are

included in the records for all appeals from final orders disposing of motions

for postconviction relief filed under rule 3.851. This rule does not limit the

authority to file directions under rule 9.200(a)(3), or to correct or supplement

the record under rule 9.200(f).

Appendix 5


Two-Column Format

Proposed rule

RULE 9.142. PROCEDURES FOR REVIEW IN DEATH

PENALTY CASES

(a) Procedure in Death Penalty Appeals.

(1) Record.


court, the chief justice will direct the appropriate chief judge

of the circuit court to monitor the preparation of the complete

record for timely filing in the supreme court. Transcripts of all

proceedings conducted in the lower tribunal shall be included

in the record under these rules.


shall include all items required by rule 9.200 and by any order

issued by the supreme court. In any appeal following the

initial direct appeal, the record transmitted shall begin with

the most recent mandate issued by the supreme court, or the

most recent filing not already transmitted in a prior record in

the event the preceding appeal was disposed of without a

mandate, and shall exclude any materials already transmitted

to the supreme court as the record in any prior appeal.

(C) The supreme court shall take judicial notice of the

appellate records in all prior appeals and writ proceedings

involving a challenge to the same judgment of conviction and

sentence of death. Appellate records subject to judicial notice

under this subdivision shall not be duplicated in the record


Reason for change

This amendment conforms the rule to the Court’s July 6,

1995, administrative order regarding transcripts in death

penalty appeals.

This amendment defines the “complete record” required in

death penalty appeals and clarifies that items transmitted in

prior records in the same proceeding are not to be included in

subsequent records.

This amendment clarifies that the supreme court can review

items in prior records from the same proceeding by judicial

notice and provides that they should not be duplicated in the

new record.

(2) Briefs; Transcripts. [NO CHANGE]

(3) Sanctions. [NO CHANGE]

(4) Oral Argument. [NO CHANGE]

(5) Petitions for Extraordinary Relief. [NO

CHANGE]

(6) Scope of Review. [NO CHANGE]

(b) Petition Seeking Review of Nonfinal Orders in

Death Penalty Postconviction Proceedings. [NO CHANGE]

(c) Review of Dismissal of Postconviction Proceedings

and Discharge of Counsel in Florida Rule of Criminal

Procedure 3.851(i) Cases. [NO CHANGE]

Committee Notes

2009 Amendment. Subdivision (a)(1) has been amended to

clarify what is meant by the phrase “complete record” in any

death penalty appeal. A complete record in a death penalty

appeal includes all items required by rule 9.200 and by any

order issued by the supreme court, including any

administrative orders such as In Re: Record in Capital Cases

(Fla. July 6, 1995). It is necessary for transcripts of all

hearings to be prepared and designated for inclusion in the

record in all death penalty cases under rules 9.200(b),

9.140(f)(2), and 9.142(a)(2), to ensure completeness for both

present and future review. The supreme court permanently

retains the records in all death penalty appeals and writ

proceedings arising from a death penalty case. See rule

9.140(f)(5); Florida Rule of Judicial Administration

2.430(e)(2). These records are available to the supreme court

when reviewing any subsequent proceeding involving the

same defendant without the need for inclusion of copies of

these records in the record for the appeal under review.

Subdivision (a)(1) does not limit the ability of the parties to

rely on prior appellate records involving the same defendant

and the same judgment of conviction and sentence of death.

Subdivision (a)(1)(B) is intended to ensure, among other

things, that all documents filed in the lower tribunal under

Florida Rule of Criminal Procedure 3.852 are included in the

records for all appeals from final orders disposing of motions

for postconviction relief filed under rule 3.851. This rule does

not limit the authority to file directions under rule 9.200(a)(3),

or to correct or supplement the record under rule 9.200(f).

Appendix 6

In re: Record in Capital Cases

Administrative Order

July 6, 1995

~upreme <!Court of jflorilla

IN RE: RECORD IN CAPITAL CASES

ADMINISTRATIVE ORDER

It has come to the Court's attention that the appeals in

several recent capital cases have been delayed because of

inadequate records. In order that there be no misunderstanding,

the Court has concluded that the record on appeal in capital

cases shall include at least the following:

(1) All pleadings, charging documents, motions,

memoranda, orders, and exhibits, excluding only praecipes and

notices of hearing if they are not relevant to the appeal.

(2) Transcripts of all pretrial, voir dire, trial,

sentencing, and posttrial proceedings, including all bench

conferences, motions, and status hearings whether in open court

or in chambers.

(3) Transcripts of all tapes played in court.

(4) All written jury questions, requests for jury

instructions, jury instructions, verdict forms, sentencing

memoranda (including presentence investigation reports), and

sentencing guidelines scoresheets.

DONE AND ORDERED at Tallahassee, Florida, this 6th day of

July, 1995.

STEPHEN H. GRIMES

ATTEST:

~.' Clerk •

Appendix 7

Supreme Court of Florida Letter of Referral

January 16, 2008

~upreme ~ourt ofjf1odba

It AuID l..!!W1!I CHIEJ'JusnCE

CHARUlsl. W6t.1.$ HMlty LIla ANstEAD IUJUl;AIIA'. PAlUEiNl'E PIlOO'V A. QIJINC'il RAOUl O. CAN'I1lk<),11I Kl;:H"'E'IlI n. BELl..

JlISllCl'.s

Mr. Steven L. Brannock

500 South Duval Street Tall't...·!?CC~ Flarida 32399.1925

Janumy 16,2008

Chait, AppeUatc Court Rules Committee P.O. Box 1288 Tampa, Florida 33601-1288

Re: Retention of Original Exhibits in Trial Court

Dear Mr. Brannock:

Pursuant to instructiollll from !he Court, r am writing 00 you in your capacity as Chair of the Appellate Court Rules Committee to ask your committee to address an issue of concern to the Court. Recently, a box cool'1lining the record and exbibits in a death penalty case was lost doring transit from my office back to !he trial court clerk. The courier's truck transporting the box was stolen; and, it appears the missing box, containing several original exhibits, will not be recovered.

Rule 9.2oo(a)(I), The Record, currently provides that except as otherwise designated by the parties, with certain noted exceptioos, the record 00 appeallihall consist of original documents, exhibits, and transcripts of proceedings filed in the lower tribunal. The ccrurt has detennined that transporting original exhibits back and forth between the trial and appellate courts creates an unnecessary risk of loss. Therefore, at the Court's direction, the standard order in death pona\ty appeals now directs that this Court is to receive copies of documentary exhibits; all original exhibits arc to be kept in the trial court unless the Court orders otherwise.

Mr. Steven L. Brannock January 16,2008 Page: 2

The Coun would liIre your committee to study whether rule 9.200 should be amended to require all original exhibits, including physical exhibits, 00 be retained in the trial court, unless otherwise ordered by the appellate court and only copies of the exhibits, when fulls;bl., to be sent 00 the appellate court. Qf, Fla. R. App. P. 9.200(a)(2)(providing that in family law,juvenile dependency, and termination of parental rights cases, and cases involving families and children in need of services, certain original documents and exhibits shall be retained in the lower tribunal and copies of the retained items shall be included in the record on appeal). Unless the committee detennines the matter shonld be considered out of cycle, any proposed amendments should be included in the next regular-cycle report of proposed rule changes. !fyou should determine nmre lim. is necessary to address the issue, please file a motion for extension with my office.

Should you have any questions, please do not hesitate to contact me or Justice Wells, who is the Court's liaison to your committee.

Thomas D. Hall

TDH/dm/sb

cc: The Honorable C'harles T. Wells, Liaison to Committee Joanna Mauer, Bar Staff Liaison to Committee Deborah J. Meyer, Director of Central Staff

Appendix 8

Criminal Practice and Record on Appeal

Joint Subcommittee Report

With Attachments

Crilllinsl Pradiee aDd Record on Appeal

J.iDt S.bcommittee Repert

~ber17,2008

A Joint Subcommittee comprised of the Criminal Practice suboommittee and the Record on Appeal Sllbcommittee has consideted a Januazy 16. 2008 referral from the Supreme Court of Florida asliog our Committee to addtess "whether Rule 9.200 should be amended to require an origiDal exhibit:s, .including physical exbibif$, to be retained in the trial court, unless otherwise ordered by the appellate court. and ooly copies of the exbibits when feasible to be sent to the appellate COllrt.." (Exlu'bit A, Refeaal). TelephoDic ~ ~ held on September 22, 2008; December 4, 200s, and December 11. 2008 (and lots of work was accomp1isbed between meetings). The Jomt Subcommittee is now recommending dJanges to Rnle 9.2OO(aXl).

'The genesis of1he Court's a>neem was the loss of original exbibi1s in f1 death peualty case when the courier's t:ruck transporting the records back to the circuit court was stolen. l The Court determined tbJ:lt there was an unaooeptable risk ~ with the transpottation of origiDal exhibits and bad, accordingly, modified the standard order iBled in death pcoal1y cases to require that origioal exhibits be retained in the trial court and that only copies of documeD1ary exhibits be transferred to the Court for coosidemtion on appeal.

This referral ~ initially assigned to Ihc Criminal Practice subcommittee. which met on 1une 4. 2008. to consider the issues presented (Exhibit B, 6/4IOS Minutes). The Criminal Practice subco.mmittec noted initially that Rule 9.200 currently provides that original exbibits arc to be included in the record on appeal, but that "physical evidence" is not to be included in the reconi. The CrimiDal Practice suboommittee discussed the advantages and disadvantages of requiring duplication of docQl'aentary exhibits in all appeals so that origiuaJs could be maintained by the clerlt of the lower tribunal. In addition. the Criminal Practice subcommittee considered wbether physical evickllce, wbkb. is presumptively not sui1able for duplication, sboold be retained in the lower tribunal, unless specifically J"eqUested by the appellate court.

The Criminal Practice subcommittee reached a consensus that 1he cost involved in duplicating docmnentaty exhibits in all appeals was not justified, since such exlu'bits are typically maintained by the parties and may be replaced easily if lost in transit to or from the appellate rom The Criminal Practice subcommittee agreed generally that, because the potential consequences of lost physical evideuoe are much greater. exhibits which are not easily

I The loss of physical evidence giving rise to this refe.aal was a couseqtJeDCe of the Florida Supreme Court's then-standing order which had required that all "mailable" exhibits be included in the record as transmitted to the Cowt in a death penalty case.

1

1 /16/09 A~c4Agenda Page 418

reproducible and not independently maintained by the parties should be retained in the lower tribunal. The Criminal Practice subcommittee agreed generally that the question of whether to transmit original physical evidence should be left to the appellate oollIt, rather than to a party.

In the effort to codify the conclusioos of the Czi.tnjnal Practice subcommittee. concerns were expressed regarding the appropriate scope of my proposed revision to Rule 9.200. One concern was whether any change should apply to death penalty cases only. to all criminal cases. or to all appeals; given the Florida Supreme Court"s practice ofissuing case-specific orders with regard to ilie record in death penalty appeals, the Criminal Practice suOOommi~ believed tbQt it would be appropriate to consider a broader application. In addition, the Court's reference to "physical exhibits" rather than "physical evidenctY', as currently used in Rule 9.200, created concern; the consensus was 1hat all exhibits, even docmnents. are technically ~ysical exhibits". and it wou1d be important to distingWsh between exhibits that can be reproduced easily (such as documents aDd photographs) and exhibits that cannot be reproduced easily.

In Jight of the plethora of concems expr~ the Criminal Practice subco.1DlDit1ee recommended !bat the Committee Chair seek clarification from the Court. At the September 12, 2008 ACRe general nKeting. Chait 101m Mills iJJdicated that he was re1nctant to reqaest clarlfk:a1ion because the refemd requests consideration of whether "aU" original exhibits should be retained. Other ACRe members agreed 1hat the referral sought consideration of a rule change broader in scope thm1 merely criminal appeals. Aamdingly, 1he referral was re-assigned 10 the Record on Appeal subcommittee to consider jointly with the Cthninal Practice snbcommiUee.

On September 22, 2008~ a joint meeting of both svbcommittees was held. Members present again expressed a reluctance to place an additional butdeo on elel'ks of court to duplicate exlnDits that are easily reproducible, copies ofwhich are typic::aIly maintsined by the parties. The availability of copies that can be readily substituted for the originals, if the originals are lost in tTansi1, reduces significantly the risk associated with transpo.rta.tio of such exhibits. The Joint Subcommittee reoommended that a sentence be added to 9.2OO(a)(I), providing:

Exhibits that cannot be reproduced through electronic means shan remain with the clerk of the lower tribunal, UJl1ess requested by the court

(Exbibi1 C. 9121108 Minutes),

The minutes from the Joint Subcommittee meeting were prepared and furnished to Chair Mills. Chair Mills requested that the Joint Subcommittee reconsider this issue to ensure that all aspects of the Court's referral are addressed. Cbair Mills sUggested 1hat the Joint Subcommittee propose a rule eodifying what appeared to be the Court's suggestion that all original exlnDits be retained in the lower tribwlaI, along with the reasons why the Joint Subcommittee was not recommending such a rule. Criminal Practice subcommittee Cbair Carol Dittmar and Reooni on Appeal subcommiUee Chair Stanford Solomon agm:d to reoonvene the Joint Committee forfurther c:cmsideration of the issues.

2

1 /16/09 AC~e Rgenda Page 419

On December 4, 2008, the Joint Subcommittee met. Prior- to the meeting. several proposals were circulated for consideration. including the initial proposals which bad been discussed by the Criminal Practice subcommittee and by the loint Subcommittee. After extensive discussion. Record OD. Appeal subcommittee Chair So1omon suggested that two new proposals be drafted. Teuence Kehoe YOlunteered to draft a proposal to provide that all original exhibits be retained in the lower tribunal, and that the record include only copies of exlnOits which were easily reproducible; original exhibits would only be transmitted with permission of the appellate court (Exhibit D, Kehoe Memo '1). Henry Gyden volunteered to draft a second proposal, providing that physical evidence which oouId not easily be reproduced wooId be retained in the lower tnDunal, but tbat or,iginal docnments which were exhibits would still be transmitted with the recoId (ExlnDit E, Gyden Memo #1). The Kehoe and Gyden memos w='e circulated to the Joint Subcommittee.

On December II, 2008. a follow-up meeting was held. The scope of any proposed role change was discussed extensively, with recognition of the diffenlnt issues and different procedures involved in criminal appeals as distingui3hed ftom civil appeals. Because documentary exhibits may be voluminous in either case and because copies of such exhibits are generally maintained by ci:v.il pnctitionc:rs, the CODSellSUS of the Joint Subcommittee was that the retention of original docume:ntary exhibits (requiring clerks to furnish copies for the reoord on appeal) was unnecessary in civil cases. However, the Joint Subcommittee ~ that retention of aD origiDal exhibits was appropriate in criminal cases.

The Joint Subcommittee also explored the most approp.riaie place in Rule 9.200 to incoIpOrate the intended rule change, as well as the best language to adopt. lJltimafely, the Joint Subcommittee voted tmarrirnously to recommend the proposal drafted by Mr. Kehoe. as modified (EXbibit F. Kehoe Memo #2).

The amendment recommended by the ]oint Subcommittee (ie.. the Kehoe proposal, Exhibit F) can be extended to all appeals byeJiminating the limiting phrase "In criminal ceses," in the ad&d sentence; or dJe change can be restricted to death penalty cases by modifying the limiting phrase to tead "In death penalty appeals".

Therefore, the Joint -Subcommittee recommends the following changes 10 Rule 9.200(aXl):

RULE 9.108. THE RECORD

<a) Contents.

(1) Except as otherwise designated by the parties. the record shall oonsist of the original documents, II! exhibits which are Dot physical evidegoe, and m 1raDscri.pt(s) of prooeedings,if ~ filed in the lower tribunal. except summonses, pmecipcs. ~ returns, notioo of bearing or of taking depositiDD, depositions, and other discovery,;md phyfieal tMdeaee. m etimiDal cases. when any exhibit. including physical evidence. is 10 be includes! in the m:ord, the clerk of the lower tribunal shall. \1Illess ordered by the COW1, retain the original and. if ca,pable of reproduction, mmsmit a cqpy. The record sball also include a progress docket.

3

1 /16/09 A~~ ~'\1enda Page 420

MINUTES OF ACRe CRIMINAL SUBCOMMI'ITEE

On Wednesday. June 4, 2008, at 2:00 p.m., the ACRe Criminal Subcomnrittee held a telephonic meeting to discuss the Florida Supreme Court's referral of January 16~ 2008,' for the ACRC to "study whether rule 9.200 should be amended. to require all original exhibits, inc1uding physical exhibits, to be retained in the trial court, unless otherwise ordered by the appellate court and only copies of the exhibits, when feasible, to be sent to the appellate court.» Prior to the meeting, emails were exchanged, including proposed language from Porsche Shantz for modifying Rule 9.200 and comments relating to the proposed language. The meeting was attended by: CaJianne Lantz, chair; Carol Dittmar, vice-chair; Porsche Shantz; Susan Wright; Gwendolyn Powell-Braswell; Fran Toomey; Ken Nunnelley; Maria Annas; Susan Hugentugler; Terry Kehoe; Michael Ufferman; David Gemmer; and Fleur Lobree, liaison from the Criminal Procedw:e Rules Committee. As the Record on Appeal Subc~ttee will also be considering this referral, Henry Gyden of the ROA also attended. Dittmar agreed to take minutes. Lantz opened the meeting and confirmed members had received the prior emai1s. Lantz then read the FSC referral letter.

The initial change proposed by Shantz added "or ordered by the court" to Rule 9 .200( aX 1), so the first sentence would read: "Except as otherwise designated by the parties, or ordered by the court~ the record shall consist of ••. " Shantz explained that, since 9.200(aXl) currently provides that the record includes original exhibits except . physical evidence, and 9.200(aX3) provides that either party may direct the clerk to include additional exhibits, the most logical change as suggested by the FSC referral would be to prohibit a. party from directing that original exhibits or physical evidence be included in the record absent prior approval by the appellate court fur inclusion of such items. Discussion ensued as to whether the added language, or any change, was necessmy. Dittmar noted that the concern expressed in the FSC letter arose from the loss of physical evidence in a death penalty case due to a stolen DIlL truck which was transporting original~ physical evidence back to the circuit court for postconvictioD proceedings. The subcommittee was generally in agreement that original exhibits should be retained in the trial court to reduce the risk of unnecessary loss, unless a particular item of evidence was critical for consideration of an issue raised in the appeal

There was concern noted as to additional burdens placed on the lower court clerk's offices in having to copy exhibits, 'When feasible." There was a question of whether there was a demonstrated need to justify the additional copying and administrative

Pa~e47 1/16/09 ACRC Agenda Page 423

costs that would follow. The general consensus was that retention in the trla1 court was the best option and the additional burden of copying those reproducible exhibits was outweighed by the reduced risk of Josing original exhibits. The subcommittee approved adding "or ordered by the courf' as proposed to 9.200(a)(I).

Consideration turned to the proposal for a new subsection (aX3) (moving the current 9.200(a){3) to (a)(4) and having the current (aX4) become anew (aXS»), which would read as follows:

(3) In criminal CCI3e8, the record shall include those items designated in subdivision (a)(J) for direct appeals, and thoae items designated in rule 9.14J(b)(2)(A} or (b)(3)(B)!01'appealsfromordersonmotions!orpost.convictionrelieJ, except thaJ the clerk of the lower tribunal shall retain the original exhibits, including physical exhibits, as part o/the file of the lower tribunal tmd shall include copies thereof. where feasible. within the record

There were a nwnber ~f comments directed at the substance and language of this proposed provision. Powell-Braswell questioned the need to copy exhibits which may not be needed in the appeal. given that all parties should have their own copies of the exhibits from the litigation in the lower court. Toomey suggested eliminating "as part oftbe file of the lower tribunal," as unnecessary. Kehoe questioned the reference to "original exhibits. including physical exbibi~" suggesting that "physical evidence" may be more appropriate, given that any exhibit would be classified as a physical exhibit. It was noted tbatthe FSC referral letter used the language ']>hysical exhibits," leading the subcommittee to question whether the referral meant to eliminate the distinction between physical evidence and otherexlnoits. Several members questioned the need to cross .. reference 9.200(aXI) and 9.141. It was noted that our previous recommendation to amend 9.142 with regard to the record in capital appeals has not, as ye~ been adopted, and that the outcome of that recommendation may have an impact on any new proposal under this refe.rra1.

There were a number of concerns raised as to the FSC referral in general. While the Court discussed the genesis of the referral as relating to the loss ofpbysical evidence in a capital case, it was noted that the current rules provide that the physical evidence should have been retained in the trial court. However, the FSC practice is to generate case-specific orders regarding the preparation of the record in capital cases, which may request a record other than what is specifically defined in 9.200( aXl). The language of the referral does not limit any modification to criminal cases but would seem to

1/16/09 A~{)a"'genda Page 424

incorporate all appeals~ yet the new proposed (aX3) is just directed to criminal cases. If the change was to apply to all appeals, it would be better addressed by modifying 9.200(aXI) rather than creating a new subsection (3). Gemmer circulated an email with proposed language to amend (aXl) in lieu of creating a new (aX3). Again the issue of funding impact was presented, jf the proposal was to extend to all appeals. Ibemore the subcommittee discussed the referral, the more questions were presented as to the scope of any change which the referral may have contemplated. Lantz noted that the referral letter indicated that questions about the referral could be directed to Tom Hall, and suggested the subcommittee may want to ask the ACRe Chair to get further clarification before spending time refining language which may not be consistent with the intent of the referral. Shantz noted that she had informally discussed the issue with Mr. Hall, and she was under the impression that the intent of too referral was to eliminate the practice of the FSC receiving the physical evidence which, particularly in capital cases, can be an evolving process.

A number of members spoke in favor of seeking further clarification from the Court. 'There was some discussion as to whether a formal letter was necessary, or whether an informal discussion withHalI would be more appropriate. Ultimately, Lantz suggested that members could circulate their concerns and requests for clarification, and Lantz could send a letter to John Mills, with a copy of these minutes, asking that he seek clarification nom 1heFlorida Supreme Court on this refenal. All members agreed with this course of action. In the meantime, we may have some resolution as to our prior recommendations on Rule 9.142.

Lantz acknowledged thatPorsche Shantz, Susan Wrigh~ and Susan Hugentugler (and possibly others) are rotating off this . term, and thanked them for their valuable contributions to this subcommittee.

The meeting adjourned at 3:20 p.m. Following the meetings, emails were circulating identifying the following concerns regarding the Florida Supreme Court referral:

1. The referral discusses the problem with transmitting physical evidence. Iftbis is defined as non-reproducible evidence, such will be, by definition, original evidence. AI; the current rule 9.200(aXl) excludes physical evidence from the record, there is no appar~t need for a rule amendment to address this concern.

Pa,.&e 49 1/16109 ACKC Agenda Page 425

2. The referral uses the term ']mysical exhibif' whl1e the rule uses the term "physical evidence." All exhibits are pbysical, whether they are docwnentary or nonreproducible. Clarification is needed as to whether the perceived problem is limited to physical (non-reproducible) evidence exhibits or all exhibits (ltlCluding documentary).

3. Is the referral asking us, as a preliminary matter, to investigate whether a problem exists in this regard outside of the death penalty ~text on which the court focused? If so, should such investigation extend to civil appeals, or is the concern limited to criminal appeals?

1/16/09 AC~e~8enda Page 426

TO:

FROM:

DATE:

BE:

MltMORANDllM

The ACRe Committee

Stanford R. Solomoo

October 27.2008

ACRe· - TRANSMITTAL OF ORIGINAL BXHIBrrs: Rule 9.200(aXl) Joint Subcommittee Meeting or1he Record on Appeal and Criminal Practice Subcommittees Septmnber 22, 2008 Meeting Minutes

A Joint Subcommittee comprised of the ACRe Record on Appeal SuIJcommitmc and the ACRe Criminal Practice Subcammittee mel by tcIeQ01Jfcrmce on Septefnber22. 2008, to consider Tom Hall's lanwuy 16,200S leltl:r regarding retention of original edUbm in the 1riaJ court A copy otTOID Hall's Juuary 16* letter is attached hereto.

In attendance Ill: the te1econference wem Record on Appeal Suboommittee ebair Stanford SoIomou and subcommittee members Ken Nunnelley, Henry O. Gydeu. Carol Dittmar, Stephanie G. Ko~ and Judge Mattuerite H. Davis. Qiminal Practice SubtommittM member Calianno Lantz was also in attendance_

Mr. Solomon so1iclfed views on whether rule 9.200(aXl) should be amended to provide 1IW the clerk of the lower 1n"bunal should copy all mdn"bi1s to avoid the risk that origiual cx1uDiD may be lost in transit 10 or ii'om the appellate court. Tom HalI'slanuary 16th letter reflects 1hat. in death penalty eascs. 'the Supreme Court ordeIs 1hat the clerk oftbc lo\iloU Cribunalretain all criginaI exhibits and transmit to the reviewing court only copieaoffhe documenlary exhibits. Spoci&a1ly.Mr. Solomon queried whdherrule 9.2OO(aXI) should be amended to address the retemim or tradSInittal of origillal exhibits in non-death cases.

Mr. Solomon noted that clerk of COUJ1S would likely oppose any rule that increued their workload and/or administrative cost5. Since the cooperation. oftbe clerks woold be III integral eomponent of any change, it would be important to seek their input

Judge Davis expressed her view that lost exlu'bits is a situation that bappeDs in&cquentIy. The only incident that she recalls occurnd in the Ted Bundy case, in which some court records w.R removed from the courthouse and two boxes M3 stolen. The clerks will bbly disagree with any changes in the rules regarding their procedures.

Mr. Solomon queried whether it would be advisable: to propose a rule 'that provides 1hat court records sbClUld not be 1ranspOrted unless the reviewing court 1hinb it nooessaty.

Henry Gyden mentioned that documentary exhibits are likely to have been copied by the parties and. it is unlikely that such ex1u"bits could not be replaced if lost in transit.

It was noted that, in family and juvenile cases. the n::cord is copied and originals remain always with the clerk of tho lower tribwlal.

1/16/09 AdRe ~enda Page 427

.Judge Davis commented that a rule change would place an added burden on someone to make additional copies f(r exhibits when they introduc:c evidence at trial. Would or shoold the clerk of the court or ooe of tile parties themselves be saddled with the burden aud the expense of making and maintaining copies of all exhibits for transmittal to the reviewing c:owt? Who should he responsible for the additional costs. which could be substantial?

Ken NwmeUey noted that he has practiced exclusively in capital prosecutioo cases and has observed that it is difficult for the clerks to transition to new rule changes.

Calianae Lantz-noted that the CriminaJ Subcommittee addressed this issue a few mooths ago and identified some issuea that it wanted clarified by TOlD Hall. A lettJ:rwas prepared. outJiniug those issues. A oopy of IeUer is attadted hercto_

Mr. Solomon a.slced wbctber the mJe should recognize the distinction betweeu original and nonorigioal exhibits and whether that distinction should be recogoized in the rule. Ms. Lantz pcaci tbat originals mcold always stay with the lower tribunal. Ms. Kolman opined thai: tho rule shouJd rccoguizc the distinc1ion between copies of documents and physical evidcn<.1c beoanse documents C8D be copi.ed. easily and. mp~ 8S necessary. whereas original instruments and physical ovidc.mce arc more difficult to Copy or 10 replace.

Mr. Nunnelley CODJll1CJ1ted that, in his IS ye&l'I of handling eulusivoly death cases, he flas had one only instance where an exhibit was lost.. He noted ~ that there is generally not much need for the court 10 look at physical exhibits.

Aft=r further discussion. Mr. Solomon observed that the coasensus of the loint Subcommitt= is that 1he rule should not be am«1ded to require tho clerk to 00Vi all exhibits IDd transmit to the reviewing eowt only the ClOpies to ensure that notbing cao be stoleo, lost or misplaced. Such a requimMnt would ippear to place a sigIlificInt burden OIl the parties and DO the c1erb of court. without providing lID)'

cotresponding benefit. The Joint Sub;ommittee agreed that. in the case of physical exhibits tbat cwld not be replaced or repI,cated, those exhibits should Jemaiu with the clerk of the lower 1ribunaI. aoIess the reviewing court requests dDt the physical evidcuce be transmiIted.

A proposed draft amendment to rule 9.200(aXl) reflecting the aubcommittee's proposed ebange is set forth below: .

<a> Cootmts.

(1) Except as otherwise designated by the parties,. the record shaD coasist of the original documents, exhibits, and transcrlpt(s) Df proceedings. if any. fi1ed in the lower tribunal. except summons~ ~ subpoemas, retums. notices of hearing or of '1:.akU!s deposition. depositions. other discovery. and physical evideuce. Bxbibits mat <:3lUlOt be RProduced tlupygh electronic means aball remain with the plett of the Iowq tribunal. unless reouesu:d b.y the court. The record shall also include a progross docket.

1/16/09 A~Kf;5Agenda Page 428

PROPOSED CHANGE TO FLA.RAPP.P. 9.200

I. Background

The January 16, 2008. referral letter from the Supreme Court contains a) a

statement that recenUy original eXhibits were lost in a death penaHy appeal, b) a

statement that the Supreme Courl's standard order in death penalty appeals now

requires 1hat original exhiblts are to be kept in the lower tribunal unless othetWise

ordnd by the Supreme Court. and c) a request that the ACRe consider \\'hether Rule

9.200 should be amended to Implement such a practice i1 all cases.

One statement that has caused some unaJr1ainty Is the reference to -al original

exhibits, including physical exhibits." As discussed below, Rule 9.200(a)(1) speake of

"exhibits" and "'physical evidence,- but not 8physlcal exhibits.· More than one member

has opined that aU -exhibits" are IIphysicaJ exhibls." so that term does not help to clarify

the issUe. I am taking the position that the Court wants us to address aI exhibits, and

not just physical eVidence.

Initfaly, the CrIminal PracUce subcommittee considered the request M. Ihe

SePtember 12. 2008. ACRe meeting. Chairman MJlI$ referred the matter to both the

Record on Appeal and the Crimlnar Practice subcommittees. Following a joint

telephone meeting on September 22, 2008, a proposal was sent to Chairman Mills. By

emah dated November 17, 2008, the Chairman sent the matter back to the two

subcommittees for additional consideration.

Another telephonic meeting of the two subcommittees was held on December 4,

2006. Four proposals were before the group for consideration. At the end, no

consensus had been mached on anyone proposal.

1/16/09 A<r~$lgenda Page 429

Record on Appeal sUbcommittee Chair Sandy Solomon then suggested two

proposals be drafted for oonsideration during a December 11. 2008, telephone meeting.

This proposal, which is intended to change the rule so that no original exhibits are sent

to the appellate court without an order from that court. is one of those proposets.

II. Proposed Change

A preliminary issue was wh9ro to place any change. Rule 9.200 and specificaly

9.2OO(a). dealing With the contents of1he record, are mentioned in the referral letter.

During the December 4 meeting. It was discussed whether 9.200(d). dealing with the

transmittal of the record by 1he clerk. was the belter place. However, that really deals

with the numbering of the record, preparatfonof the record, and transmittal of the

record. The only reference to the contents is that it shaO include a progress docket.

which is already included In Rule 9.2oo(a). In Chainnan Mils' November 17 eman, he

wonders whether Rule 9.2OO(aX3) wouid be a better place for any change. That

addresses cirections to Ihe clerk to Include additional items, or exclude certain items,

from the record. It does not address Ihe Issue of original versus copies. I therefOf&

believe that 9200(aX1) Is the best place for the proposed change. That leJIs Ihe partJas

and the clerk right up front that the original exhibits are not included. unless ordered by

the court.

The propose change Is set forth below. Material wIlhJn brackets is proposed to

be deleted. Material that is under1ined Is new.

1/16109 ACR~~~enda Page 430


(a) Contents.

(1) Except 8S othelWise designated by parties. the record shall consist

of the original documents. all exhibits which are not phvsJcal eVidence, and any

transcrlpt(s) of proceedings[. if any,] filed in the lower tribunal, except summonses,

praecipes, subpoenas. returns, notlces of hearing or of taking deposition. deposftions,

and other discoveryLphysical evidence]. When any exhibit. including physical evidence.

is to be Included, the c1e1t( of the lower tribunal shalJ retain the original and transmit a

copy. if feasible. unless otherwise ordered by the court. The record shalll:llso include a

progress docket

IlL Other Concerns

First. there needs to be a discussion of the words -documenls,- "'exhibits.· and

'"physical evidence: I be.eve -documents- means aI pleadings. orders, and .other

papers flied ~Y the court or the parties and does not Include -exhibits- or «physical

evidence: -Exhibits" is all inclusive, and means au eXhibits filed in the lower bibunal.

whether they are plaintiff, stata, defense. or court exhibits; whether they were admitted

into evidence or not; and whether they are paper, or pho1os, or diagrams, or drugs, or

guns, or any other trial exhibit Thus any ·phySical evidence" 16 an exhibit. I cannot

think of ·physical evidence- that would be part of a trial court record that is not an

exhibit I believe the exception for ·physical evidence" is intended to prevent the

transmittal of -exhibits" that are not standard size documents or photos, and thus

cannot be readily reproduced on a standard size piece of paper. Drugs. guns.

1/16/09 AC~6k~nda Page 431

videotapes, large diagrams, etc., are what is intended to consfdered "physical

evidence,-

The Fifth District's "Notice To Attorneys And Parties" contains the following

paragmph which I believe covers the Intent of the ruJe as it is now written. It reads=

10. When providing directions to the clerk of the lower court 10 incJude exhibits in 1he record, do not designata any tangible eVidence wilhout prior permission of the Fifth District. This apples especially to drugs. firearms. explosives. and heavy, bulky items. but does not apply to nonnal size photographs, maps, graphs, etc. (emphaSis in origInal).

The Fourth District's "Notice to Attorneys and Parties- sfmlarly states:

10. PHYSiCAl EXHIBITS. No physical evidence (excluding documents) or outsized exhibits shall be included In the record on appeal without the party first requesting permission of the court. It is the responsibility of the party to insure that the drcult court cieri< has incJuded any relevant documentary eVidence inlroduced at trial in the record on appeal.

Jt does not appear that the other appelate courts have any such nOlice to counsel or

the parties.

Second. there needs to be an awareness of other rules that discuss the

appelate record in specific proceedings. Rule 9.14O(f)(3}, dealing with criminal

appeals, states:

Retention of Doauments . . Unless otherwise ordered by the court, the cferk of the lower trfbunal shaD retain all original documents except the originaJ transcripts designated for appeal Which shall be Included in the record transmitted to the court.

Of course, this does not address eXhibits. In criminal appeals. this rule overrides the

provision in Rule 9.200(a}(1} that original documents are part of the record.

Rule 9~(a)(2). which was spec:ifjcally mentioned in the referrat 1eUer, deals

with family Jaw, juveniJe dependency. termjnation of parental rights. and families and

1/16/09 A~()5~genda Page 432

children in need of services cases. Similar to Rule 9.140(f)(3), it requires the clerk to

retain the originals of orders, reports. recommendations. and judgments. and only send

copies of them in the record. Although the referrat letter discusses exhibits in

connection with Rule 9.2OO(a)(2), that rule does not specifically mention exhibits and

thus does not teU the clerk to send copies of exhibits and retain 1he originals.

Post-conviction cases have special record requirements. Rule 9.141(b){2)(A) and

(b)(3)(B). Both of them speak in terms of sending copies of certain documents, and

(b)(3XB) speaks of sending the original of any tmnscripts. Although (b)(3)(B) concerns

the dental of motions after an evidentiary hearing. where exhibits could be utilized, it

does not require (or evan discuss) the inclusion of exhibits in the record.

Workers' compensation cases have their own rule, Rule 9.180(f). AdmJnlstnitive

appeals have their own rule. Rule 9.190(c). So any Change we make will definitely

Impact cMI and aiminaf cases. and because workers' compensation and administrative

appeals can involve exhibits. it wil impact those also.

Finally, the proposal takes the position that no original exhibit - physical evidence

or otherwise ~ can be sent to the appellate oourt wi1hout an order from that court. In

other words. counsel desiring that an original exhibit be sent to the appellate court wilt

need to file a motion asking Ihe court to allow the original to be sent This motion may

be fded early, at the time the directions to the clerk are filed. so that the original can be

incfuded in the record from the start. It can be done after a record has aJready been

filed in the appeals court. by a motion to supplement. Rule 9.200{f).

IV. RationalB for Proposal

) believe that a blanket rule addresses the problem of lost original exhibits. It

P~e57 1/16/09 ACRl,; Agenda Page 433

does not eliminate the problem. because If a oourt orders that an original exhJblt be

included in the record, there wiU always be a minlhlal risk that the exhibit ooufd be

stolen or destroyed in transfl The proposal greatJy reduces that tikelihood. however, as

Jar fewer original exhibits Will be sent up_

This wi. be the easiest rule for the parties and the clerks at both the trial level

and on appeal to understand and comply with, because it draws a clear line.

I am unaware of how it would impose an undue burden on any party or on the

clerks. In criminal appeals of which I am most famifiar. I do not see any Jrnpad. Our

civil appeal colleagues may think of some in their appeals. If a party believed it did

Impose a burden in any given case. it COUld seek reUef by motion. as cflSCUSsed above.

P~e58 1/16/09 ACR(; Agenda Page 434

"...ecI ChaD. to Florida Rule of __ 'ate Procedure 9.2OOfg)(t)

I. Background

This referral originated from the florida Supreme Court. SpecificaIJy, on January

16, 2008, lite Honorabla Thom<J$ D. HaIL Florida Supreme Court aerie, sent a leiter to

the Chair of the Appellme Court Rules Committee requesting cOl1$ideraHon of whether

florida Rule of AppeIIaIe Procedurv 9.200 "'should be amended to nlqUire oR original

exhibib, including pbysfeaJ exhibits, to be retained in the trial cowt, unleu oJberwj5e

ordered by the appeJlate court and only cop_ of the exhibils, when feasible, to be sent to

the QppellOIe'~rt" (Ex. A). The Court expressed concern that original exhibits in a deatb

penalty CCHe hod been II)$f when the re<;ord WO$ being transmitted bock 10 the drCIJiI

ccurt, and !he courier's irua was 5Iolen. The Court determined that then9 WQ$ an

lJnQQ;eplable risk associated with !he Ironsporlafion of original exhibits and, acxcrdingfy,

modified !he standard order issued in deaIh penalty cases to rvquint Ihat originals be

retained in Ihe circuit coon and that only copies of doeumentury exhibit. be transferred 10

the Court for consideration in the appeal

Ai ih. September 12, 2008, ACRe m.Mtting, the matter was refernd to Ibe

Criminal Practice ond Record on Appeal subcommillees. following Q joiJ,t telephonic

meeting on SepIember 22, 2008, a proposoI WtlS 3Gnt to Cltairmcm Mills. By e-mail

dated November 17, 2008, Chairman Mills referred Ihe mailer back 10 the joint

slJbcommiftee for additionaJ considerotion.

One of the qU8$lion.s before the ioint subc::ommittee was whether the Court'5 ~

concem was the original physical avidenoe that could not be raproduoed, such as guns,

knives, or clothing, or whether its wnam encompassed aU original exhibib, indudiog

Page 59 1/16/09 ACRC Agenda Page 435

documenfory exhibib. A teleconference was held on December 4, 2008, and at the and

of that meeting, the jOint 5C.Ibcommiftee determined that 1wo propolals ,houfd be draFted

regarding the referral. The first propo.soJ would take the posiflOn that no oneinalexhibils

should be transmitted to the. oppellabal court without a prior order from the court. The

second proposal would take !he position thot original documaniary exhibits coufd be

tronsmilled to the appellate court buJ physical evidence (exhibit! that could not be readily

reproduced through photoecpying. such as a gun or bife) woUld remain with the derk

unless the appeHote court ordered oIherwise.

BoIh proposol$ were cddreued at the December 11, 2008 telephonic meeting. I"

oftendance were Sandy Solomon, Corol Diffmar, Judge Marguerite H. Davis, Stephanie

G. Kolman, Terry Kehoe, Michae! Efferman, Calianne lantz, Thomas Young, Fran rooney,

Ken Nunnelley, Hemy Gyden and Dorothy Easley. At 1he conclusion of the meeting, the

joint subcommittee unanimou~ \IOfud to adopt the first proposal noted above, wi1h slight

modifJCOtiorts. The joint subcommillee l'urlher recommended that the second proposal,

although rejected, shoufd noneth~ be forwoJded to the Court for Its consJderation in

the event the Court wishes to limit the amendment in Rule 9.200(0)(1) solely to phY'icaI

evidene&.

II. ProWled Amendment tI2

The second proposed amendment is as foIbN,:

Rule 9.200. 1he IecorcI

(a) Contents.

(1) Except as otherwise deJignated by the parties or ordered by the coyrt. the mcord :shaH consist of II1e original doc:umenb, gJJ exhibits which pm not pfooicgl evidence, and Jran$Crlpt(sJ of ~ fiJed in the

1/16/09 ACR<f~~~da Page 436

lower Iribunal, except surnmOlml$. praecipes, .subpoenas, reltJrns, nOOces of hearing ot" of faking deposition, depositions, ~other d~ phY'ieal e'i~ee. PhYSicol evidence sholl remain with the clerk of the lower tribvngl unle!5 ""q.VeSJed by the cwd. The record shoH oIso include a progress docket.

(3) Wrthin 10 days of fihng lhe notice of appecl, an appellant may direct the derk 10 include or exdude orher documents or exhibits filed in the lower lrihunal. The directions shal be substontioly in the form pre$Crlbec/ by rule 9.900(1). If the derl: is directed to transmit less lhan the entire record or a transcript of frial with less than all of the testimony, the appellant shari serve wiJh such direcfion a sfalement of the judicial ad$ to be reviewed. Wllhin 20 days of filing the notice, an appelee may direct the cleric to include additional docvmenb and exhibits. No wrIY may direct Ihot ~jcgJ evidence be included in the record wjthout prior ~jssion from Ihe court.

JII. Rotjonglo for Pro.posed Rule gnd Its !Wiedjon

The joint IUbcommittee noted that, even in a 5impJe civil appeal, documentary

exhlbm can of1an consist of hundreds of pages 01 documents. Some darb c:I1OTge $1.00

par page 10 ·duplicate an original exhibit svbmitfed by the pcrieI. Thus, in some cases,

the costs of the appeal to the parties and the efforls of the darb 'M>UId be significantly

increased If the clerk were required 10 duplicate oR original exhibits in ewry appeal.

Given the recent increase in court fees, the joint ,lJbcommiltee hod conaarns with adopting

a rule anterldmenf ihal would further Ina-ease appellate costs and place additional

burdens on the clerics.

The joint subcommitlee also noted that, in many cos., especially in eMJ CO$85, the

parti8$ and their attorneys will have copies of 011 documentary exhibib. Thus, Ihe

exislence of copies thai can be readily substituted for th$ originals, should 1he orisinds be

lost in transit, reduces significanly the rislt associaJed with the fransporlation of such

8J(hibifs. For Ihese reasons, Jhe joint subcommilfea questioned whether it was neceuary 10

1/16/09 ACR<r"g'l1da Page 437

amend rule 9.200(aHI) to require the duplication of all original exIlibits, rather than

hmiting the changes 10 physkol evidence.

To the extent the Court's concern ~ primarily focused on physlca/ evidence, the

joint subcommiHee believ8$ that the second proposal adequately addras.ses that CXHJcam in

reqoirios that all pb)'lical evidence remain with the clerk, unless dle Court orders

otherwise. Thb proposal woufd not impose 0 requirement that ~ crerk copy original

exhibits in art appeals. The ioint subcommittee. howeww, ultimately rejected this approach

in criminal cases for lite realOtls chscussed below.

The loint ~ubcommiltee first noted Ihat the referral IeJtar states that the Court's

standard order in death penally appeals direds that the dark make copies of all

docvmentcry exhibi15 and that all original documentary exhibits ilnd non-doaJmentary

exhibits remain with the clerk unless the Court orders otherwise. Thus, Ihe referrollefter

sugs-ts that lite Court's conc;em encompasse$ more Ifl<m phf$k:d evidenc:e. Rather, the

Court appecn to hove concluded that, at lea&t in the ciminol contut, the risk of losing

even documento.y exhibits is signiFicant.

The joint subcommittee further noted that, in many criminal casas, the appellate

aHome"y may not participate in the trial and may not h<Ml copies of the triol exhibits.

Moreover, crimina defendanls~ who are often Inc:an::eroted during some portion of !he

criminal proceedings, may hove difficuhy obtaining and maintaining copies of

documentary exhibih. Accordingly, in aiminal cases, the mk. lIlat a copy may not be

available to replace a lost original exhibit is significantly greater than in c:ivt1 cases.

The joint subc.ommia. also recognized thot Florida Rule of AppeIkde Procedure

9 .140(~(3J, which addrel$G$ Jhe record in criminal cme5, provides:

1/16/09 ACRSg't!fQnda Page 438

(3) Retention of Documents. Unless otherwise ordered by the court, the clerk of the lower fnbunal shal reklin ClH original documents except the original framcripts designated for appeal which shall be included in !he record transmiffed to the court.

Thus, in criminal cases, !he 'clerics are already required to make copies of the original

documents in the oourt file. The joint subcommittee concluded that requiring the darb to

also make copies of the originoJ exhibiJs would not slgnificantfy increase !he burden that

already existed for the clerics.

Forthe:5e reasons, the jOint subcommittee re]eded the pR)(JOS01 10 limit the chcmges

to 9.200(a)(1} to only physical evidence and instead adopled a proposal that would

require the copying of 01 originaJ exhibit5 in aiminal ttJSeS. In 5tlCh CGSe$, the original

exhibits and phyl~1 evidence woold remoiD with the clerk unless the oppelJote court

orders oIhEllWise.

1/16/09 ACPWie,qenda Page 439

PROPOSED CHANGE TO FlA.RAPP.P. 9.200(8)(1)

I. Background

The January 16, 2008 referral letter from the Supreme Court contains a) a

statement that original exhibits were recentiy lost In a death penalty appeal, b) a

statement that the Supreme Court's standard order in death penalty appeals now

requires that original exhibits am to be kept in the lower tribunal unless OIherwise

ordered by the SUpreme Court, and c} a request that the ACRe consider whether

Rule 9.200 should be amended to implement such a practice in all cases.

One statement that has caused some uncertainty is the reference in the referral

letter to -aU originaJ exhibits. including physical exhibits..- Rule 9.200{aX1) speaks of

cexhJl)Hs- and "'physical evidence," but not ·physical exhibits: More than one member

has opined that aU -exhibits- are ·Physical exhibits,· so that term does not help to clarify

the issue. The subcommittees have considered whether any rule change should apply

to aD exhibits. or just to physical evidence.

rnitially, the Criminal PraoOOe subcommittee considered the request. At the

September 12, 2008, ACRe meeting, Chairman Mils referred the matter to both the

Record on Appeal and the Criminal Practice subCommittees. Following a joint

telephone meeting on September 22, 2008, a proposal was sent to Chairman MiOs.. By

ems" dated November 17. 2008, the Chairman sent the matter back to the two

subcommittees fur additionaf consideration.

Another telephonic meeting of the two subcommittees was held on December 4,

2008. Four proposals were before the group for consideration. At the end, no

consensus had been reached on anyone proposaL

1/16/09 .A:~es Agenda Page 440

Record on Appeal subcommittee Chair Sandy Solomon then suggested t'IN'O

Proposals be drafted for consideration - one taking the position that ·no original exhIbits

Should be transmitted without a court order and one taking the position the only certain

exhiblta would reqUire a court order M during a December 11. 2008, telephone meeting.

The two proposals were circulated prior to the meeting.

The December 11 telephone meeting was attended by Sandy Solomon.

Carol Dittmar, Judge Davis., Ken Nunnelley, CaJianne Lantz, Dorothy Easley,

Michael Ufferman. Henry Gyden. Tom Young, Fran Toomey. and Terry Kehoe. The

proposed change, discussed below, passed unanimously.

II. Proposed Chanem

The proposed change is set forth below. Material within bradtets is proposed to

be deleted. Material that is underlined is new.


(a) ConlBnts.

(1) Except as otheJWise designated by parUes, the recom shall consjst

of the original documents, all exhibits that are not physical evidence, and!!!rl

transcript(s) of proceedingsf. if any,] filed in the lower tribunal. except wnmonses,

praecipes, subpoenas. returns, notices of hearing or of taking deposition, depositions.

and other discovery(.physical evidence]. In criminal cases, when any exhibit. Including

physical evidence. is to be included In the record. the clerk of the lower trtbunal shall.

unless ordered by the court retain the Original and. if caoable Of reproduction. transmit

a copy, The recOrd shaB also include a progress docket

1/16/09 Ac~fA8~nda Page 441

III. Concerns DIscussed

One issue discussed, primarily at the December 4 meeting. was where to place

any change. Rule 9.200 and specifICally 9.2OO(a), deaflng with the contents of the

record, are mentioned in the referral letter. It was discussed Whe1her 9.200(d}. dealing

with the transmittal of the record by 1he clerk. was the better place. However, that really

deals with the numbering of the record, preparation of the racord. and transmittal of the

record. The only reference to the contents Is that It shaD include a progress docket.

which is already included In Rule 9.200{a). In Chainnan MUts' November 17 email. he

wondered whether Rule 9.2OO(aX3} would be a better place for any change. That

addresses directions to the clerk to include additional items. or exclude certain items.

fioo1 the record. H does not address the issue of original versus copies. Du~ng the

Deceinber 11 meeting it was agreed that 9.2OO(aX1) is the b~ place for the proposed

change. That teUs the parties and the clerk right up front that the original exl)ibits are

not included In criminal appeals, unless ordered by the court.

Another important discussion concerned whe1herthe proposed change should

apply to an appears, or just 10 crirnlna/ appeals. The r9ferralletter was prompted by a

aiminal case. Most of the anecdotal evidence discussed by subcommittee members

led to the belief .that while lost original exhibits was a concern in criminal cases, it was

much less one In civil cases. CivIl practitioners were especially concerned that

requiring the clerk of the lower tribunal, in civil cases. to retain the original exhibits and

send copies to the clerk would Increase both costs to the parties and work for the clerk.

Those burdens were determined to be too great to justify applying the change in eMl

cases. The subcommittees unanimously agreed to limit the change to CI1m1nal cases.

Pa~e66 1/16109 ACRC Agenda Page 442

The language -if capable of reproduction" generated a good deal of discussion.

The referral letter talked of sending copies of the designated exhibits "when feasible.

SimDar language was in a prior proposal. The committee ultimately agreed that some

language was needed to make it dear to the clerk below that he/she could not just

retain the original exhibit. he/she had to jndude In the recortf a copy of a designated

exhibit If such a copy could reasonably be made. Whla al teRns considered seemed to

have some ambiguity, the proposed language was finally chosen as that which best told

the cieri<: what to do.

The Intent is that in all non-criminal cases the current practice concerning

exhibits should not change. In criminal appeals. counseJ desi'ing that an original exhibit

be sent to the appellate court will need to file a motion asking the court to alow the

. original to be sent. This motion may be filed eat1y, at the time the directions to the clerk

are filed. so that the original can be included In the record from the start. It can be done

after a record has already been filed in the appeals court, by a motJon to supplement,

Rule 9.2OO(f).

The rule addresses the problem of lost original exhibits In criminal cases. It does

not eliminate the problem. because if a court orders that an original exhibit be included

in the reoortl. there will always be a minimal risk that the exhibit could be stolen or

destroyed in transit. The proposal greatly reduces that likelihood. however. as far fewer

original exhibits wUl be sent up.

1/16/09 ACRq.~ifda Page 443

Appendix 9

Appellate Court Rules Committee

Pertinent Excerpts of Draft Minutes

January 16, 2009 Midyear Meeting

PERTINENT EXCERPT OF DRAFT MINUTES

APPELLATE COURT RULES COMMITTEE FRIDAY, JANUARY 16, 2009

II. CHAIR’S REPORT

G. RECORD ON APPEAL – 9.200

1. ORIGINAL EXHIBITS.

By letter dated January 16, 2008, the Supreme Court of Florida asked

the ACRC to study whether Rule 9.200 should be amended to require all

original exhibits, including physical exhibits, to be retained in the trial court,

unless otherwise ordered by the appellate court and only copies of the

exhibits, when feasible, to be sent to the appellate court. A copy of this

letter is at pages 421-22.

After deliberation by the Criminal Practice Subcommittee and a report

to the full ACRC at the September 2008 meeting, the matter was referred

back for joint consideration by the Criminal Practice and Record on Appeal

Subcommittees. After further deliberation described in the Criminal

Practice Subcommittee’s report (pages 418-20), the joint subcommittee

recommends the following amendment:

RULE 9.200. THE RECORD.

(a) Contents.

(1) Except as otherwise designated by the

parties, the record shall consist of the original

documents, all exhibits that are not physical

evidence, and any transcript(s) of proceedings, if

any, filed in the lower tribunal, except summonses,

praecipes, subpoenas, returns, notice of hearing or

of taking deposition, depositions, and other

discovery, and physical evidence. In criminal

cases, when any exhibit, including physical

evidence, is to be included in the record, the clerk

of the lower tribunal shall, unless ordered by the

court, retain the original and, if capable of

reproduction, transmit a copy. The record shall

also include a progress docket.

(b)-(g) [No change]

Sandy Solomon – This is a referral from Tom Hall regarding original

exhibits, asking us to consider whether they should be sent to the appellate

court. The issue came up because some exhibits in a death case were lost.

What do we do about original exhibits, physical exhibits, exhibits that could

be reproduced, whose burden is it, and how should that be handled? We

conducted joint meetings with the criminal practice subcommittee. I defer to

Carol to present conclusions.

It appears there is a typo at p. 20 in agenda. At p. 420 the presentation

is correct. The change is the mislocation of the word “all.” Other than that,

it is accurately presented on p. 20 of agenda.

John Mills – Actually, also, in the second line, the word “documents”

is not stricken through in the proposal, so remove strike through.

Carol Dittmar – Originally criminal practice subcommittee did not see

need to change rule. The specific incident that caused the court to refer

related to a capital case. Records were governed by Supreme Court

administrative order, but the referral letter indicated that they had changed

their standing order to require that evidence be retained in circuit court and

not be automatically transmitted. We thought the problem was resolved and

did not see a need to change. At September meeting in Tampa the

committee saw the wording of the referral is very broad, and concern was

not just for criminal cases, so we set up a joint committee. We talked about

the clerks’ different duties in criminal vs. civil records and realized there is a

big distinction. We felt it was appropriate to adopt what the court was

looking for at least in criminal cases. The only real change is those

documents or physical evidence that cannot be reproduced will be retained

in trial court under the rule as proposed. Since the clerk is making copies

for the parties, it is not a burden for the clerk to make one more copy for the

court and not send originals. In the rule as proposed, consistent with what

rule already requires, physical evidence is retained in trial court unless the

appellate court requires the original be sent up. Page 420 is the actual

proposed rule.

Tom Hall – This fairly characterizes my proposal.

Calliane Lantz – On p. 420 line 3, should replace “which” with “that.”

John Mills – This is a friendly amendment – is that accepted?

Carol Dittmar – Yes

Chair Mills – What we are discussing is rule as it appears on p. 20

with only one change, “documents” not stricken through.

Paul Regensdorf – In Broward County clerk returns all exhibits

immediately to all the lawyers, and record dissipates upon verdict.

Reconstruction is a pain in the neck. By exclusion we are telling clerk to

keep only criminal records. By implication in civil cases clerk may dissipate

record. I realize it is more important in criminal cases to keep the record

intact. This is a bad practice.

Chair Mills – I don’t think the intent is to address that specific issue.

Carol Dittmar – Concern was in civil cases where there are lengthy

exhibits that need to be reproduced, who would to pay for it, the appellant –

may have volumes and volumes of exhibits.

Nancy Gregoire – I agree with Paul. We should require, if we can’t

force the clerk due to room limits, should something in record showing to

whom exhibits were returned. Sometimes trial attorneys say they didn’t get

them and they are lost.

Michael Korn – Why was Mr. Kehoe’s amendment in subcommittee

voted down, to eliminate words “in criminal cases.” In civil cases, not just

paper documents but physical evidence is discharged to parties, it is difficult

to track down. I had a case where a cooler was a piece of evidence to use at

oral argument, and it was gone. Fifth DCA had its own rule about not

transmitting physical evidence. I don’t understand why this is limited to

criminal cases.

Chair Mills – Are you making motion to delete “in criminal cases”?

Michael Korn – I make the motion.

Nancy Gregoire - second

Terrence Kehoe – We heard objections by a lot of civil lawyers that

cost was not justified, even though in criminal cases one or two exhibits

were lost, and they did not want to change the way civil appeals are handled,

so we redrafted to limit the rule to criminal cases that trial court required to

keep originals and send copies to appellate court. That was how this

evolved into primarily exception for criminal cases.

Denise Powers – Given the budget crisis we are facing, I agree with

Nancy. The trial attorney should physically sign a form, and has a duty to

keep exhibits. This is a burden we need to put on trial lawyers to maintain

exhibits, not on clerk’s office

Hinda Klein – This is not a matter for the appellate rules. It is for

Rules of Judicial Administration or Civil Procedure.

John Crabtree – I think this is an appellate rule. It does not mean trial

lawyers don’t have to take exhibits. It does mean clerk is responsible for

retaining exhibits as part of the record if there is an appeal. We can still have

a rule that is not onerous to the clerk. We don’t know when a verdict is

rendered if there will be appeal because judge may change the result. Trial

lawyers can still keep the exhibits and must deliver to clerk who can take

care of them in this manner if there is an appeal.

Nancy Gregoire – I know circuit courts do not have money for storage

but we need trail of where the exhibits went, so you know who has them.

That would solve problem. I agree with Hinda that issue is for Civil

Procedure or Judicial Administration, but the problem should be solved.

Sandy Solomon – There are 2 separate issues. The only issue before

joint subcommittee is about losing exhibits in the transmittal to appellate

court. The caveat in the next to last sentence, about criminal vs. civil cases,

was point of enormous contention on subcommittee. We did not want to

make a problem where there wasn’t one. The issue of duplication of

enormous paper record in civil cases was our concern, so we limited

transmittal of copies to criminal cases. It is still not perfect world under the

rule, which deals only with transmittal of documents from one court to the

other. If this is a concern that Paul and Nancy and others are talking about,

as to who should maintain or how they should maintain records, send the

proposal back because we did not deal with that issue. We were looking at

issue of losing the smoking gun which is what caused the problem. Maybe

we should look at broader scope of rule. This focus of this proposal should

be whether transmittal should be different in criminal vs. civil cases. That is

something we can resolve today, and other issues can be referred back for

June meeting.

Chair Mills – I will refer these to subcommittee

Ed Sanchez – I agree with Sandy that these need to be addressed.

Instead of saying the lower tribunal shall retain original record, should say

clerk of lower tribunal shall not transmit originals unless ordered by the

court. So just address whether or not the clerk is transmitting record, without

dealing with retention.

Chair Mills – Vote on motion to amend this proposal so that it applies

to all cases, strike “in criminal cases” in second to last sentence in

9.200(a)(1)

VOTE – 14 yes - 39 no - Motion fails

Chair Mills – Back on the original proposal as it appears on p. 20,

except word “documents” should not be stricken through.

Ed Sanchez – Propose amending to say that “in criminal cases when

any exhibit including physical evidence is to be included in the record, the

clerk of the lower tribunal shall not transmit the original to the reviewing

court unless ordered by the court, and if capable of reproduction, transmit a

copy.”

Judge Walsh - second

Ed Guedes – I like the concept Ed proposed but suggest a variation on

the language to say “the clerk of the lower tribunal shall not, unless ordered

by the court, transmit the original and, if capable of reproduction, shall

transmit a copy.”

Ed Sanchez – That is fine with me.

Chair Mills – Motion is on third line from bottom, add “not” after

“shall,” replace “retain” with “transmit,” add “shall” before the second

“transmit.” This change is accepted by movant.

Judge Walsh – This is a valid suggestion. The problem that

precipitated change is one of transmission or retention. This would solve

problem of transmitting originals, which is purpose for the rule change, and

would skirt the issue of requiring the clerk to retain more than needed.

Chair Mills - Vote on amendment to the proposal

VOTE – Motion passes 35-15

Chair Mills – Now vote on amended proposal

Sandy Solomon – I want to make sure for purposes of the referral on

the issue of where do documents go after trial – this amendment that we just

approved is designed to skirt that issue. Did people who voted for this

amendment intend not to resolve that issue in this amendment?

John Mills – That remains an issue to be resolved and I will refer to

the subcommittee whether further amendment to Rule 9.200 is needed.

Vote on rule proposal as amended passes 49-4.

RULE 9.200. THE RECORD.

(a) Contents.


parties, the record shall consist of the original

documents, all exhibits that are not physical

evidence, and any transcript(s) of proceedings, if

any, filed in the lower tribunal, except summonses,

praecipes, subpoenas, returns, notice of hearing or

of taking deposition, depositions, and other

discovery, and physical evidence. In criminal

cases, when any exhibit, including physical

evidence, is to be included in the record, the clerk

of the lower tribunal shall not, unless ordered by

the court, transmit the original and, if capable of

reproduction, shall transmit a copy. The record

shall also include a progress docket.

(b)-(g) [No change]

Chair Mills – Thank you, Sandy and Carol, and both your

subcommittees. The Record on Appeal subcommittee will consider whether

an amendment is necessary to address clerk’s retention of trial exhibits

including physical evidence.

Appendix 10


Full Page Format


(a) Contents.

(1) Except as otherwise designated by the parties, the record

shall consist of the original documents, all exhibits that are not physical

evidence, and any transcript(s) of proceedings, if any, filed in the lower

tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or

of taking deposition, depositions, and other discovery, and physical evidence. In

criminal cases, when any exhibit, including physical evidence, is to be included

in the record, the clerk of the lower tribunal shall not, unless ordered by the

court, transmit the original and, if capable of reproduction, shall transmit a

copy. The record shall also include a progress docket.

(2) In family law, juvenile dependency, and termination of

parental rights cases, and cases involving families and children in need of

services, the record shall include those items designated in subdivision (a)(1)

except that the clerk of the lower tribunal shall retain the original orders, reports

and recommendations of magistrates or hearing officers, and judgments within

the file of the lower tribunal and shall include copies thereof within the record.

(3) Within 10 days of filing the notice of appeal, an appellant

may direct the clerk to include or exclude other documents or exhibits filed in

the lower tribunal. The directions shall be substantially in the form prescribed by

rule 9.900(f). If the clerk is directed to transmit less than the entire record or a

transcript of trial with less than all of the testimony, the appellant shall serve

with such direction a statement of the judicial acts to be reviewed. Within 20

days of filing the notice, an appellee may direct the clerk to include additional

documents and exhibits.

(4) The parties may prepare a stipulated statement showing how

the issues to be presented arose and were decided in the lower tribunal,

attaching a copy of the order to be reviewed and as much of the record in the

lower tribunal as is necessary to a determination of the issues to be presented.

The parties shall advise the clerk of their intention to rely on a stipulated state-

ment in lieu of the record as early in advance of filing as possible. The stipu-

lated statement shall be filed by the parties and transmitted to the court by the

clerk of the lower tribunal within the time prescribed for transmittal of the

record.

(b) Transcript(s) of Proceedings.

(1) Within 10 days of filing the notice, the appellant shall

designate those portions of the proceedings not on file deemed necessary for

transcription and inclusion in the record. Within 20 days of filing the notice, an

appellee may designate additional portions of the proceedings. Copies of

designations shall be served on the court reporter. Costs of the original and all

copies of the transcript(s) so designated shall be borne initially by the desig-

nating party, subject to appropriate taxation of costs as prescribed by rule 9.400.

At the time of the designation, unless other satisfactory arrangements have been

made, the designating party must make a deposit of 1/2 of the estimated tran-

script costs, and must pay the full balance of the fee on delivery of the

completed transcript(s).

(2) Within 30 days of service of a designation, or within the

additional time provided for under subdivision (b)(3) of this rule, the court

reporter shall transcribe and file with the clerk of the lower tribunal the

designated proceedings and shall serve copies as requested in the designation.

In addition to the paper copies, the court reporter shall file with the clerk of the

lower tribunal and serve on the designated parties an electronic copy of the

designated proceedings in a format approved by the supreme court. If a

designating party directs the court reporter to furnish the transcript(s) to fewer

than all parties, that designating party shall serve a copy of the designated

transcript(s), in both electronic and paper form, on the parties within 5 days of

receipt from the court reporter. The transcript of the trial shall be securely

bound in consecutively numbered volumes not to exceed 200 pages each, and

each page shall be numbered consecutively. Each volume shall be prefaced by

an index containing the names of the witnesses, a list of all exhibits offered and

introduced in evidence, and the pages where each may be found.

(3) On service of a designation, the reporter shall acknowledge

at the foot of the designation the fact that it has been received and the date on

which the reporter expects to have the transcript(s) completed and shall transmit

the designation, so endorsed, to the parties and to the clerk of the appellate

court within 5 days of service. If the transcript(s) cannot be completed within

30 days of service of the designation, the reporter shall request such additional

time as is reasonably necessary and shall state the reasons therefor. If the

reporter requests an extension of time, the court shall allow the parties 5 days in

which to object or agree. The appellate court shall approve the request or take

other appropriate action and shall notify the reporter and the parties of the due

date of the transcript(s).

(4) If no report of the proceedings was made, or if the transcript

is unavailable, the appellant may prepare a statement of the evidence or

proceedings from the best available means, including the appellant’s

recollection. The statement shall be served on the appellee, who may serve

objections or proposed amendments to it within 10 days of service. Thereafter,

the statement and any objections or proposed amendments shall be submitted to

the lower tribunal for settlement and approval. As settled and approved, the

statement shall be included by the clerk of the lower tribunal in the record.

(c) Cross-Appeals. Within 20 days of filing the notice, a cross-

appellant may direct that additional documents, exhibits, or transcript(s) be

included in the record. If less than the entire record is designated, the cross-

appellant shall serve, with the directions, a statement of the judicial acts to be

reviewed. The cross-appellee shall have 10 days after such service to direct

further additions. The time for preparation and transmittal of the record shall be

extended by 10 days.

(d) Duties of Clerk; Preparation and Transmittal of Record.

(1) The clerk of the lower tribunal shall prepare the record as

follows:

(A) The clerk of the lower tribunal shall not be required to

verify and shall not charge for the incorporation of any transcript(s) into the

record. The transcript of the trial shall be incorporated at the end of the record,

and shall not be renumbered by the clerk. The progress docket shall be

incorporated into the record immediately after the index.

(B) The remainder of the record, including all

supplements and any transcripts other than the transcript of the trial, shall be

consecutively numbered. The record shall be securely bound in consecutively

numbered volumes not to exceed 200 pages each. The cover sheet of each

volume shall contain the name of the lower tribunal and the style and number of

the case.

(2) The clerk of the lower tribunal shall prepare a complete

index to the record and shall attach a copy of the progress docket to the index.

(3) The clerk of the lower tribunal shall certify and transmit the

record to the court as prescribed by these rules; provided that if the parties

stipulate or the lower tribunal orders that the original record be retained, the

clerk shall prepare and transmit a certified copy.

(e) Duties of Appellant or Petitioner. The burden to ensure that the

record is prepared and transmitted in accordance with these rules shall be on the

petitioner or appellant. Any party may enforce the provisions of this rule by

motion.

(f) Correcting and Supplementing Record.

(1) 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.

(2) If the court finds the record is incomplete, it shall direct a

party to supply the omitted parts of the record. No proceeding shall be

determined, because of an incomplete record, until an opportunity to supple-

ment the record has been given.

(g) Return of Record. In civil cases, the record shall be returned to

the lower tribunal after final disposition by the court.

Committee Notes

1977 Amendment. This rule replaces former rule 3.6 and represents a

complete revision of the matters pertaining to the record for an appellate

proceeding. References in this rule to “appellant” and “appellee” should be

treated as equivalent to “petitioner” and “respondent,” respectively. See

Commentary, Fla. R. App. P. 9.020. This rule is based in part on Federal Rule

of Appellate Procedure 10(b).

Subdivision (a)(1) establishes the content of the record unless an

appellant within 10 days of filing the notice directs the clerk to exclude portions

of the record or to include additional portions, or the appellee within 20 days of

the notice being filed directs inclusion of additional portions. In lieu of a record,

the parties may prepare a stipulated statement, attaching a copy of the order that

is sought to be reviewed and essential portions of the record. If a stipulated

statement is prepared, the parties must advise the clerk not to prepare the

record. The stipulated statement is to be filed and transmitted within the time

prescribed for transmittal of the record. If less than a full record is to be used,

the initiating party must serve a statement of the judicial acts to be reviewed so

that the opposing party may determine whether additional portions of the record

are required. Such a statement is not intended to be the equivalent of

assignments of error under former rule 3.5. Any inadequacy in the statement

may be cured by motion to supplement the record under subdivision (f) of this

rule.

Subdivision (a) interacts with subdivision (b) so that as soon as the notice

is filed the clerk of the lower tribunal will prepare and transmit the complete

record of the case as described by the rule. To include in the record any of the

items automatically omitted, a party must designate the items desired. A

transcript of the proceedings in the lower tribunal will not be prepared or

transmitted unless already filed, or the parties designate the portions of the

transcript desired to be transmitted. Subdivision (b)(2) imposes on the reporter

an affirmative duty to prepare the transcript of the proceedings as soon as

designated. It is intended that to complete the preparation of all official papers to

be filed with the court, the appellant need only file the notice, designate omitted

portions of the record that are desired, and designate the desired portions of the

transcript. It therefore will be unnecessary to file directions with the clerk of the

lower tribunal in most cases.

Subdivision (b)(1) replaces former rule 3.6(d)(2), and specifically requires

service of the designation on the court reporter. This is intended to avoid delays

that sometimes occur when a party files the designation, but fails to notify the

court reporter that a transcript is needed. The rule also establishes the

responsibility of the designating party to initially bear the cost of the transcript.

Subdivision (b)(2) replaces former rule 3.6(e). This rule provides for the

form of the transcript, and imposes on the reporter the affirmative duty of

delivering copies of the transcript to the ordering parties on request. Such a

request may be included in the designation. Under subdivision (e), however, the

responsibility for ensuring performance remains with the parties. The

requirement that pages be consecutively numbered is new and is deemed

necessary to assure continuity and ease of reference for the convenience of the

court. This requirement applies even if 2 or more parties designate portions of the

proceedings for transcription. It is intended that the transcript portions

transmitted to the court constitute a single consecutively numbered document in

1 or more volumes not exceeding 200 pages each. If there is more than 1 court

reporter, the clerk will renumber the pages of the transcript copies so that they are

sequential. The requirement of a complete index at the beginning of each volume

is new, and is necessary to standardize the format and to guide those preparing

transcripts.

Subdivision (b)(3) provides the procedures to be followed if no transcript

is available.

Subdivision (c) provides the procedures to be followed if there is a cross-

appeal or cross-petition.

Subdivision (d) sets forth the manner in which the clerk of the lower

tribunal is to prepare the record. The original record is to be transmitted unless

the parties stipulate or the lower court orders the original be retained, except

that under rule 9.140(d) (governing criminal cases), the original is to be retained

unless the court orders otherwise.

Subdivision (e) places the burden of enforcement of this rule on the

appellant or petitioner, but any party may move for an order requiring

adherence to the rule.

Subdivision (f) replaces former rule 3.6(l). The new rule is intended to

ensure that appellate proceedings will be decided on their merits and that no

showing of good cause, negligence, or accident is required before the lower

tribunal or the court orders the completion of the record. 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. It is specifically intended to

avoid those situations that have occurred in the past when an order has been

affirmed because appellate counsel failed to bring up the portions of the record

necessary to determine whether there was an error. See Pan American Metal

Prods. Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962). The rule is not intended

to cure inadequacies in the record that result from the failure of a party to make

a proper record during the proceedings in the lower tribunal. 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. This rule does not impose

on the lower tribunal or the court a duty to review on their own the adequacy of

the preparation of the record. A failure to supplement the record after notice by

the court may be held against the party at fault.

Subdivision (g) requires that the record in civil cases be returned to the

lower tribunal after final disposition by the court regardless of whether the

original record or a copy was used. The court may retain or return the record in

criminal cases according to its internal administration policies.

1980 Amendment. Subdivisions (b)(1) and (b)(2) were amended to

specify that the party designating portions of the transcript for inclusion in the

record on appeal shall pay for the cost of transcription and shall pay for and

furnish a copy of the portions designated for all opposing parties. See rule

9.420(b) and 1980 committee note thereto relating to limitations of number of

copies.

1987 Amendment. Subdivision (b)(3) above is patterned after Federal

Rule of Appellate Procedure 11(b).

1992 Amendment. Subdivisions (b)(2), (d)(1)(A), and (d)(1)(B) were

amended to standardize the lower court clerk’s procedure with respect to the

placement and pagination of the transcript in the record on appeal. This

amendment places the duty of paginating the transcript on the court reporter and

requires the clerk to include the transcript at the end of the record, without

repagination.

1996 Amendment. Subdivision (a)(2) was added because family law

cases frequently have continuing activity at the lower tribunal level during the

pendency of appellate proceedings and that continued activity may be hampered

by the absence of orders being enforced during the pendency of the appeal.

Subdivision (b)(2) was amended to change the wording in the third

sentence from “transcript of proceedings” to “transcript of the trial” to be

consistent with and to clarify the requirement in subdivision (d)(1)(B) that it is

only the transcript of trial that is not to be renumbered by the clerk. Pursuant to

subdivision (d)(1)(B), it remains the duty of the clerk to consecutively number

transcripts other than the transcript of the trial. Subdivision (b)(2) retains the

requirement that the court reporter is to number each page of the transcript of

the trial consecutively, but it is the committee’s view that if the consecutive

pagination requirement is impracticable or becomes a hardship for the court

reporting entity, relief may be sought from the court.

2006 Amendment. Subdivision (a)(2) is amended to apply to juvenile

dependency and termination of parental rights cases and cases involving

families and children in need of services. The justification for retaining the

original orders, reports, and recommendations of magistrate or hearing officers,

and judgments within the file of the lower tribunal in family law cases applies

with equal force in juvenile dependency and termination of parental rights

cases, and cases involving families and children in need of services.

Appendix 11

Rule 9.200

Two-Column Format

Proposed rule


(a) Contents.


parties, the record shall consist of the original documents, all

exhibits that are not physical evidence, and any transcript(s) of

proceedings, if any, filed in the lower tribunal, except

summonses, praecipes, subpoenas, returns, notices of hearing or

of taking deposition, depositions, and other discovery, and

physical evidence. In criminal cases, when any exhibit, including

physical evidence, is to be included in the record, the clerk of the

lower tribunal shall not, unless ordered by the court, transmit the

original and, if capable of reproduction, shall transmit a copy. The

record shall also include a progress docket.

(2) In family law, juvenile dependency, and

termination of parental rights cases, and cases involving families

and children in need of services, the record shall include those

items designated in subdivision (a)(1) except that the clerk of the

lower tribunal shall retain the original orders, reports and

recommendations of magistrates or hearing officers, and

judgments within the file of the lower tribunal and shall include

copies thereof within the record.

(3) Within 10 days of filing the notice of

appeal, an appellant may direct the clerk to include or exclude

other documents or exhibits filed in the lower tribunal. The

Reason for changes

This amendment improves the clarity of the rule.

This amendment provides that whenever an exhibit is to be

included in the record on appeal in a criminal case, the clerk of

the lower tribunal shall only transmit copies and not originals,

unless otherwise ordered by the appellate court.

directions shall be substantially in the form prescribed by rule

9.900(f). If the clerk is directed to transmit less than the entire

record or a transcript of trial with less than all of the testimony,

the appellant shall serve with such direction a statement of the

judicial acts to be reviewed. Within 20 days of filing the notice,

an appellee may direct the clerk to include additional documents

and exhibits.

(4) The parties may prepare a stipulated state-

ment showing how the issues to be presented arose and were

decided in the lower tribunal, attaching a copy of the order to be

reviewed and as much of the record in the lower tribunal as is

necessary to a determination of the issues to be presented. The

parties shall advise the clerk of their intention to rely on a

stipulated statement in lieu of the record as early in advance of

filing as possible. The stipulated statement shall be filed by the

parties and transmitted to the court by the clerk of the lower

tribunal within the time prescribed for transmittal of the record.

(b) Transcript(s) of Proceedings. [No Changes]

(c) Cross-Appeals. [No Changes]

(d) Duties of Clerk; Preparation and Transmittal of

Record. [No Changes]

(e) Duties of Appellant or Petitioner. [No Changes]

(f) Correcting and Supplementing Record. [No

Changes]

(g) Return of Record. [No Changes]

Committee Notes

[No Changes]