Opinion
No. 1D22-1490.
02-22-2023
Kadeem Cordale DEBOSE, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary , Public Defender, and Kathryn Lane , Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody , Attorney General, and Trisha Meggs Pate , Bureau Chief, Tallahassee, for Appellee.
Jessica J. Yeary , Public Defender, and Kathryn Lane , Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody , Attorney General, and Trisha Meggs Pate , Bureau Chief, Tallahassee, for Appellee.
ON A MOTION TO SUPPLEMENT THE RECORD ON APPEAL
Tanenbaum, J.
In April 2022, Kadeem Debose pleaded no contest to two charges of criminal non-compliance with sex-offender reporting and registration laws. In doing so, he reserved the right to seek appellate review of the trial court's denial of a motion to suppress, and he and the State agreed that a grant of the motion would have been dispositive of the charges. See Fla. R. App. P. 9.140(b)(2)(A)(i). After being sentenced, Debose appealed to this court. The public defender for the Eighth Judicial Circuit ("PD8") represented Debose in the trial court, and in May 2022, one of her assistant attorneys filed a statement of judicial acts to be reviewed, which identified the suppression motion as the one appellate issue in play. See Fla. R. App. P. 9.140(f)(2)(A) (requiring the filing of "a statement of judicial acts to be reviewed" when public funds must be spent to transcribe proceedings designated by the defendant).
The trial court, at PD8's request, declared that Debose continued to be insolvent and ordered that the public bear the expense of his appeal. PD8 also filed a motion to authorize transcription of one hearing at the public's expense: the one on Debose's motion to suppress. See id. (requiring trial counsel to file "a designation to the approved court reporter or approved transcriptionist requiring preparation of only so much of the proceedings as fairly supports the issue raised" in the statement of judicial acts). The trial court granted that motion; it also appointed PD8 to represent Debose on appeal. The trial court clerk transmitted the record on appeal to this court in June 2022, and the record included the motion to suppress and the designated transcript of the motion hearing.
With PD8's record-preparation duties fulfilled, PD8 designated the public defender for the Second Judicial Circuit ("PD2") to represent the appellant in this case, pursuant to section 27.51(4), Florida Statutes. Under Florida Rule of Appellate Procedure 9.140(g)(1), the initial brief was due thirty days later—August 5, 2022. On that day, PD2 took the full sixty-day extension of time by agreement and notice allowed by this court's administrative order 19-2. When the new due date for the initial brief arrived (October 4, 2022), PD2 filed with us a motion to supplement the record. Cf. Fla. R. App. P. 9.300(b) (providing for tolling of deadline by filing of a non-excepted motion, until disposition of the motion). That is the motion we address here. To the extent that it seeks to correct the record by adding items that originally should have been included, we grant the motion. We otherwise deny the request.
The motion identifies three state exhibits from the suppression hearing that should have been included in the record on appeal but were not. Two exhibits are search warrants introduced by the State, and one exhibit is a video of the victim's interview played by the State at the hearing. The motion, however, also asks to supplement the record with transcripts of three additional hearings that were not previously mentioned in any designation to a court reporter or in a motion filed with the trial court—so presumably not yet been prepared or filed with the trial court.
To be sure, rule 9.200(f)(1) allows for correction of the record "[i]f there is an error or omission in the record." When "the record is incomplete, [this court will] direct a party to supply the omitted parts of the record." Fla. R. App. P. 9.200(f)(2). Along the same lines, we will not decide a case based on "an incomplete record, until an opportunity to supplement the record has been given." Id. We then can think of at least two problems that a motion pursuant to rule 9.200(f) can be used to address. One, obviously, is to correct an omission of an item from the record on appeal that rule 9.200 requires be there. Another is to add something to the record that was not initially required to be included but is later determined by appellate counsel, in good faith, to be necessary for court consideration of a legal argument that counsel anticipates raising (or has already raised) in the briefing. This might occur where appellate counsel independently orders a previously undesignated hearing transcript and, prior to seeking supplementation, determines from a review of it that the transcript supports an appellate argument that counsel wants to make.
With these principles in mind, we first take the part of the motion requesting that the warrants and video be added to the record on appeal. These fall squarely within what the trial clerk must include and transmit as the record (unless directed otherwise by counsel): "all exhibits that are not physical evidence." Fla. R. App. P. 9.200(a)(1); see also id. (requiring, in a criminal appeal, that the trial clerk transmit a copy (rather than the original) of any CD, DVD, "or similar electronically recorded evidence" submitted to the trial court). This request, then, is easy, as it seems to reflect the first use of rule 9.200(f) that we just mentioned. Counsel did not direct the trial clerk not to include these exhibits, see id. (a)(2), so their omission from the record on appeal must be corrected by the trial clerk transmitting a supplemental record that includes the missing exhibits.
The other part of the motion, which requests additional transcripts, is another matter. The motion does not assert that a transcript designated and filed in the trial court was erroneously omitted from the record. See Fla. R. App. P. 9.200(a), (b) (defining the record on appeal as including "any transcript(s) of proceedings filed in the lower tribunal" and setting out the designation process for the preparation and filing of transcripts of proceedings). It also does not suggest that the hearings it mentions have been transcribed, and it otherwise fails to explain what those hearings are. Further, the motion does not tell us how any of those hearings relate either to the one judicial act identified in the statement filed by PD8 pursuant to rule 9.140(f)(2)(A) (the denial of the motion to suppress) or to some other legal issue that counsel has identified as meriting appellate review. The motion instead merely states, as to these three new hearings, that PD2 requires the additional transcripts "to evaluate any issues that may be appropriate to raise on appeal."
To be clear, the statement of judicial acts required by rule 9.140(f)(2)(A) has a limited function: to conserve public funds with respect to transcripts. It does not operate as a limit on appellate counsel's review of the trial court proceedings or the issues that counsel can raise on appeal.
In this part of the motion, PD2 does not appear to be utilizing rule 9.200(f) in either of the two typical ways that we acknowledged above. There may be additional uses for a motion to supplement beyond the two we mentioned; we, of course, do not mean to suggest that there are not. Seeking a last-minute tolling of a briefing deadline and circumventing appointed trial counsel's resource-conserving designations, however, do not strike us as likely being among those permissible uses. We cannot lose sight here of the purpose behind rule 9.140(f)(2)(A), which is to ensure responsible use of public resources in an appointed-counsel or indigent defendant case. In this vein, there is no point to rule 9.140(f)(2)(A) if appointed or designated appellate counsel later can just file a request with this court, on the day the initial brief is due, for publicly funded transcription of all the hearings not previously designated by trial counsel (with the anodyne effect of extending out the briefing schedule indefinitely). Cf. § 43.16(6)(a), Fla. Stat. (requiring each public defender and regional conflict counsel to have internal controls to prevent "waste," as defined in section 11.45(1)).
Having made these observations, we do not want to overstate the reach of rule 9.140(f)(2)(A) or the extent of our involvement in record preparation. Rule 9.140(f)(2)(A) is not a limit on what appellate counsel can do to ensure the proper record is before this court to support a constitutionally sufficient appeal. At the same time, rule 9.200(f) is not the mechanism by which counsel seeks authorization for additional transcription at public expense, even if court-appointed appellate counsel wants to search for legal issues to raise on appeal. Indeed, there typically is no need for any order from us for counsel to order more transcripts. See Fla. R. App. P. 9.140(f)(2)(B) ("Either party may file motions in the lower tribunal to reduce or expand the transcripts.").
Meanwhile, it seems to us that PD2 oftentimes will not need court authorization at all (not even from the trial court) to get that transcription done. See § 27.51(6), Fla. Stat. (authorizing appropriation to each public defender who may be designated to handle an appeal for "the payment of expenses incurred in cases on appeal"); § 27.58, Fla. Stat. (making the public defender in each judicial circuit "the chief administrator of all public defender services authorized under s. 27.51 within the circuit"); § 29.006(2), Fla. Stat. (providing for a state-funded element in public defender and regional conflict counsel budgets for "[r]easonable court reporting and transcription services necessary to meet constitutional or statutory requirements"); but cf. § 29.015(1), Fla. Stat. (providing for contingency funding through the Justice Administrative Commission for situations where a public defender or regional conflict counsel runs a deficit "in contracted due process services appropriation categories").
If court authorization is required to get the transcription, it would be an ancillary matter unrelated to the record or the order on review, so the request for such authorization still would go straight to the trial court, not here. See § 27.5305(2)(b), Fla. Stat. (authorizing state payment of transcription of court hearings through the Justice Administrative Commission for private court-appointed counsel). § 27.5304(3), Fla. Stat. (providing that the trial court "retains primary authority and responsibility for determining the reasonableness of all billings for ... costs"); cf. Willey v. W.J. Hoggson Corp., 89 Fla. 446, 105 So. 126, 128 (1925) ("When the jurisdiction of the appellate court attaches, it is exclusive as to the subject covered by the appeal."); Bailey v. Bailey, 392 So.2d 49, 52 (Fla. 3d DCA 1981) (collecting cases and noting that "[i]f what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court's power and authority to decide the issues presented to it by the appeal, then the trial court can act"); Payne v. State, 493 So.2d 1104, 1105 (Fla. 1st DCA 1986) ("The test for determining whether the trial court may proceed is not whether it is proceeding in a matter which is related to the final judgment, but whether it is proceeding in a matter which affects the subject matter on appeal." (citing Bailey)).
Once the additional transcript is prepared—by whatever means—the court-appointed appellate counsel can review it and assess whether it is relevant to a legal argument to be raised on appeal. If the transcript turns out to be relevant, then rule 9.200(f) certainly is available to help with getting the needed transcript added to the record. This process, of course, takes some planning and diligence in advance on the part of counsel. It is not something that should be commenced when the initial brief finally is due. Missing from the present motion, then, is any indication of this type of diligent assessment to support a need to supplement the record. Cf. Verasso v. State, 346 So.3d 1282, 1282-83 (Fla. 1st DCA 2022) (explaining that a motion to supplement should be filed early in an appeal to have added to the record "material that counsel knew, or should have known through the exercise of diligent review at inception of the appeal, existed and was or might be needed for the appeal" (emphasis supplied)); id. at 1283 ("Counsel's obligation of timeliness demands an early, careful, and complete assessment of the need to supplement the record on appeal, so as to avoid unnecessary delay in disposition.").
Simply put, PD2 gives us nothing to work with to help assess whether there is a need for the additional transcripts to be added to the record on appeal —beyond an assertion that counsel wants them so she can review them. An order to supplement the record under rule 9.200(f) is not there just for the asking. A motion to correct or supplement the record, like any other motion filed with this court, must include a well-considered rationale for the requested relief. We hasten to reemphasize here that a motion to supplement is not "an ongoing mechanism to obtain an indirect extension of time." Verasso, 346 So. 3d at 1282. Without more than what counsel has given us here, we have no basis for granting the motion.
The trial court clerk shall transmit a supplemental record with the missing exhibits within thirty days of today. The appellant shall serve an initial brief within fifteen days thereafter. Motion GRANTED in part and DENIED in part.
Ray, J., concurs; Kelsey, J., concurs in part and dissents in part with an opinion.
Kelsey, J., concurring in part and dissenting in part.
We've made too much out of a simple and extremely common unopposed motion to supplement the record on appeal, and thereby we have injected untenable delay in this case. Appellant's counsel asked to add five hearing transcripts, and gave us a good and valid reason (though the rules and our administrative orders don't require a reason): to see if the transcripts revealed any arguable appellate issues. The appellate rules do not limit appellate counsel to the issues and documents that trial counsel initially identifies for appeal. Appellate counsel ought to exercise independent professional judgment to exhaust arguable issues, even if, and especially if, trial counsel filed a too-common statement of judicial acts to be reviewed stating simply, "judgment and sentence" or the like. Trial counsel should do better at the outset, since they are the ones most familiar with the issues and the record, but appellate counsel should also be able to make up for trial counsel's failures and omissions.
On the other hand, a lot of lawyers seem to be abusing the extension and supplementation process as a workload management technique—to kick the can down the road. Maybe each of them thinks he or she is the only one doing it, but I doubt that; we are seeing it far too much. That is inappropriate and, in my view, unprofessional and unethical. Raising this so late in the process delays disposition, makes it harder for us to comply with our timeliness standards, and dampens litigants' expectations of relatively quick answers. Our professional obligations demand more. The preamble to the Rules of Professional Conduct is very clear: "In all professional functions a lawyer should be competent, prompt, and diligent." R. Regulating Fla. Bar ch. 4 pmbl. Rule 4-1.3, entitled "Diligence," provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client.". The comment is on point: "A lawyer's workload must be controlled so that each matter can be handled competently. Perhaps no professional shortcoming is more widely resented than procrastination." R. Regulating Fla. Bar. 4-1.3 cmt. I am keenly aware of, and sympathetic to, the problems of high workload and staffing shortages. But it is not more work to address record supplementation up front, and this should become a priority.
ON A MOTION FOR REHEARING AND CERTIFICATION
Tanenbaum, J.
On February 22, 2023, we denied Kadeem Debose's motion to supplement the record, but only insofar as it requested the inclusion of non-existent transcripts. According to the motion, Debose's counsel needed the transcripts so that she could "evaluate any issues that may be appropriate to raise on appeal." We read that to mean counsel had not yet had the hearings transcribed and was looking for this court to order the transcription at public expense. In denying the request, we stated unambiguously the following: "[R]ule 9.200(f) is not the mechanism by which counsel seeks authorization for additional transcription at public expense, even if court-appointed appellate counsel wants to search for legal issues to raise on appeal." Debose v. State, 48 Fla. L. Weekly D427, 428 (Fla. 1st DCA Feb. 22, 2023). Debose now asks that we rehear the matter or certify the question to the supreme court. We deny his latest motion in all respects, but we once again write to remind counsel of the process established by statute, rule, and court order.
To be clear up front, the following two statements that Debose makes in his motion are undeniably true: that "[i]ndigent defendants are constitutionally entitled to transcripts prepared at public expense for their appeal"; and that "[a]ppellate counsel is [] obligated to explore any potential legal issues that may have merit on appeal to respect the defendant's right to effective assistance of counsel." We fully agree. What does not follow from these two truths, however, is Debose's assertion that his counsel needs this court to order the transcription of hearings before these entitlements can be fulfilled.
Debose's latest motion is premised on the mistaken notion that we somehow have limited his appellate counsel's ability to obtain and review transcripts of all hearings that counsel thinks necessary to fulfill her constitutional duty to her client. Our denial of the motion to supplement does nothing of the sort. The motion to supplement asked us, essentially, to order those hearings transcribed in the first instance. As we attempted to explain, obtaining publicly funded transcription is not a record-supplementation matter, which means that this court does not have a role in ensuring that that happens under the appellate rules.
Debose's counsel nevertheless has options for pursuing what is needed to fully "explore any potential legal issues that may have merit on appeal," and they do not involve this court. One, as we intimated in our denial of the motion to supplement, is the statutory authorization for the public defender to have transcription paid for out of her office's public funds, or by the Justice Administrative Commission ("JAC"). See § 27.51(6), Fla. Stat. (authorizing appropriation to each public defender who may be designated to handle an appeal for "the payment of expenses incurred in cases on appeal"); § 27.58, Fla. Stat. (making the public defender in each judicial circuit "the chief administrator of all public defender services authorized under s. 27.51 within the circuit"); § 29.006(2), Fla. Stat. (providing for a state-funded element in public defender and regional conflict counsel budgets for "[r]easonable court reporting and transcription services necessary to meet constitutional or statutory requirements"); § 29.015(1), Fla. Stat. (providing for contingency funding through the JAC for situations where a public defender or regional conflict counsel runs a deficit "in contracted due process services appropriation categories").
Another is through the trial court. Court-reporting is regulated by rule, which requires publicly funded transcription— under the auspices of the chief judge of each judicial circuit—of any hearing mandated by law to be reported. See Fla. R. Gen. Prac. & Jud. Admin. 2.535(a), (d), (g), (h) (defining "approved court reporter" and "approved transcriptionist" as those who perform court-reporting services or transcription services at public expense; making the chief judge the owner of all transcripts and digital recordings of proceedings "required to be reported at public expense"; and designating approved court reporters and transcriptionists as "officers of the court" who are subject to the rules and statutes governing the proceedings being reported). The rule also directs the chief judge for every judicial circuit to develop a court-reporting plan to accommodate this requirement. Id. (h)(3) (requiring each circuit court chief judge to develop and implement "a circuit-wide plan for the court reporting of all proceedings required to be reported at public expense").
The Eighth Judicial Circuit, whence the final orders on appeal in this case originated, has just such a plan. Indeed, it allows any public defender (and any other court-appointed counsel) to "obtain a transcript in rough-draft form from a real-time reporter or a CD of a digital recording by written request, at no charge" to that lawyer's office. Admin. Order 1.14, § VII.3 at 7 (8th Jud. Cir. Sept. 26, 2017) (emphasis supplied). Such a request is fulfilled without a court order, provided the copy is not going to be disseminated outside the office, used in a court proceeding, or otherwise misused. Debose does not explain in either of his motions (i.e., for supplementation or for rehearing) why this avenue is not sufficient to allow his counsel "to evaluate any issues that may be appropriate to raise on appeal." Certainly, there is nothing in our denial of his motion to supplement that forecloses him or his counsel from pursuing free, rough-draft transcripts or digital recordings of the hearings in his case by just asking the circuit's court-reporting services for them.
We note that every judicial circuit in our appellate district has a court-reporting plan. Those plans, including the Eighth Judicial Circuit's, are available on each circuit's respective website.
If Debose's counsel decides from this review that a transcript of one or more of the identified hearings is necessary for the appeal (or if she otherwise concludes from some other assessment that she needs them), she can request the trial court to authorize that transcription at public expense. According to the court-reporting plan, any public defender (or any other court-appointed counsel) "may obtain a transcript for any court event, including appeals in final certified form with an order signed by the presiding judge at no charge to" that lawyer's office. Id. § VII.4 at 8 (emphasis supplied). Once again, an order from this court is not necessary (or appropriate, for that matter). "Appellate transcripts ... shall take priority." Id. Once complete, the requested transcript is filed with the trial court clerk. See id. § VII.14.
We cannot overstate the point that rule 9.200(f) does not operate as an alternative to this process mandated by rule 2.535 for obtaining publicly funded transcripts, especially after the initial record on appeal has been transmitted. See Fla. R. App. P. 9.200(d) (providing for preparation and transcription of original record). When, as in this case, the transcript being sought has not previously been designated, the process for obtaining it would be collateral to the appeal pending with this court. That is, getting another hearing transcribed for counsel's own review is an action separate and apart from the final order or orders on review. Doing so has no effect on the order being reviewed and has no effect on the record on appeal. As we see from rule 2.535 and the administrative orders, the trial court's approval of publicly funded transcription is an administrative matter, not an adjudicatory matter, and it does not lose authority to administer the judicial circuit's court-reporting plan while a case is on appeal. Rule 9.200, particularly subdivision (f), has nothing to say on the subject.
To be sure, we have the authority to intervene by writ on an extraordinary and prerogative basis, when requested, to ensure that court officers fulfill Debose's entitlement to have hearings transcribed at public expense in support of his appeal. See Art. V, § 4(b)(3), Fla. Const. (giving the district court the authority to issue extraordinary writs, including mandamus, "necessary to the complete exercise of its jurisdiction"); see also Fla. R. Gen. Prac. & Jud. Admin. 2.535(g) (requiring approved court reporters and transcriptionists, as court officers, "to comply with all rules and statutes governing the proceeding"). Debose does not suggest he has a need for our exercise of this authority.
Rule 9.200(f) instead is a rule that provides a pathway for adding publicly funded transcripts to the originally transmitted record after counsel has ordered and obtained the transcripts and after she has determined from her review of them that they are needed for the appeal. In turn, once Debose's counsel obtains the publicly funded transcripts that she thinks she needs to fulfill her duty on appeal, then a motion to supplement would be called for by rule 9.200(f) to have the transcripts added to the record on appeal. We look forward to receiving that motion soon.
The present motion, however, is DENIED.
Ray, J., concurs; Kelsey, J., dissents with opinion to follow.
ON A MOTION FOR REHEARING AND CERTIFICATION
Kelsey, J., dissenting.
Respectfully but firmly, I am unable to join the majority opinion or approve its reasoning. Before the Court was an appellate lawyer's simple—and unopposed—motion to supplement the record with a few exhibits that had been omitted, and copies of three transcripts that trial counsel had not designated for inclusion at the outset. The transcripts covered important events: a competency hearing, a plea hearing, and a sentencing hearing. The motion to supplement was fully authorized under Florida Rule of Appellate Procedure 9.200(f). It did not violate any procedural rule or any published court decision.
Appellant's counsel did not identify the nature of the requested transcripts in the original motion to supplement (and there is no rule requiring that level of specificity), but did so in the motion for rehearing. Under Florida Rule of Appellate Procedure 9.140(b)(2)(B)(i)(b), plea and sentencing transcripts are mandatory contents of records on appeal in cases involving a plea of guilty or nolo contendere, as this case does.
Before filing the unopposed motion to supplement the record, Appellant's counsel took the automatic 60-day extension of time available under our Administrative Order 19-2 (similar to orders that all of the district courts of appeal have adopted). We readily granted the extension of time, unconditionally. Then, on the very last day of the extension, Appellant's counsel moved to supplement the record—also fully authorized and not contrary to precedent. That motion had a tolling effect, so nothing else has happened in this appeal, which again is the natural operation of the rules and not improper. As I indicated in my original dissent, however, sometimes following available procedures can be less than best practice under the rules of attorney ethics. I stopped there and would still stop there.
Now, however, the majority has rendered, and the Court has published, a decision on an unprecedented issue that the majority injected sua sponte. The decision purports to create a new exception to rule 9.200(f) not apparent on the face of the rule or in any decision interpreting or applying the rule. The opinion holds that there is no right to supplement the record with a transcript if appellate counsel has not first independently (majority's emphasis) arranged for payment of the associated expense or obtained the transcript in some free manner.
Appellant moved for rehearing and rehearing en banc, and for certification of conflict and of a question of great public importance, which the court denied by published order. The Court's Internal Operating Procedures dealing with en banc proceedings are collected in Section 6. The IOPs are posted at www.1dca.flcourts.gov, under "Resources," "General Information," and then "Internal Operating Procedures."
My dissent arises from four factors. First, the majority opinion infringes on the Florida Supreme Court's exclusive rulemaking authority. Second, the opinion violates concepts of preservation and judicial restraint. Third, by originating and pursuing an unpreserved and tangential issue, the majority initiated a process resulting in delay, and has unnecessarily consumed precious judicial resources better devoted to preserved and dispositive issues in other cases. Fourth, the opinion implicitly raises and leaves unresolved significant procedural questions such as the precedential effect of its holding and the practical steps necessary to implement it.
1. Unauthorized Rulemaking.
Only the Florida Supreme Court has rulemaking authority for the state court system. Art. V, § 2(a), Fla. Const. The Florida Rules of Appellate Procedure, duly promulgated under the supreme court's exclusive authority, "shall govern" all proceedings in the supreme court and the district courts of appeal. Fla. R. App. P. 9.010. Absolutely nothing in the appellate rules, in the comments on the rules, or in caselaw, requires, authorizes, or supports the majority's rationale or action. The supreme court controls the process of amending the rules, and we have no authority to infringe on the supreme court's exclusive jurisdiction.
As Judge Tanenbaum has noted previously, if the public defenders take issue with a court-created rule, they have remedies available before the Florida Supreme Court and its rule-making process:
I close by noting that the public defender is not without a legal remedy to challenge the scope or effect of an administrative order to the extent it affects her or her office. If she views an administrative order as improperly operating as if it is a court rule or a local rule, she may apply to the Supreme Court Local Rules Advisory Committee for a determination. See Fla. R. Gen. Prac. & Jud. Admin. 2.215(e)(2). If she instead views the chief judge as having exceeded his authority in issuing the administrative order at all, she may petition the supreme court directly. See Art. V, § 3(b)(8), Fla. Const. (giving the supreme court the authority to "issue writs of mandamus and quo warranto to state officers and state agencies"); see also Fla. R. Gen. Prac. & Jud. Admin. 2.215(b)(2) ("The chief judge shall be responsible to the chief justice of the supreme court.").
Yeary v. Chief Judge of Second Jud. Cir., 354 So.3d 581, 585 (Fla. 1st DCA 2022) (Tanenbaum, J., concurring in result), review denied, SC23-0236, 2023 WL 2923064 (Fla. Apr. 13, 2023).
Directly contrary to the supreme court's exclusive rulemaking authority, the majority purports to create an exception to the right of supplementation under rule 9.200(f), making that right contingent on counsel's having already obtained and paid for requested transcripts in some way other than through the budget of the public defender handling the appeal. The majority's interpretation runs afoul of the principle that the unambiguous language of a rule, like that of a statute, "must be accorded its plain and ordinary meaning." Brown v. State, 715 So.2d 241, 243 (Fla. 1998).
Rule 9.200(f) is clear and unambiguous. On its face, it contains no exception for publicly funded transcripts. No comment, commentary, or judicial decision injects a payment issue. Yet the majority sua sponte raises that issue under the guise of protecting the (unasserted) financial interests of non-parties, such as the Public Defenders of the Second and Eighth circuits, the relevant state attorneys' offices, offices of regional conflict counsel, the Justice Administrative Commission, sections of the Florida Bar, attorneys' practice groups, and the Appellate Court Rules Committee. If a change in the appellate rules is necessary, it should be done only through proper procedures—under supreme court authority and through the Rules Committee, where all interested groups can be heard. Further, as the statutory citations in the majority opinion on rehearing reveal, the Florida Legislature controls funding as appropriate within the affected offices, and could address any funding-related issues if a rule change required it. These issues fall within the purview of the supreme court and the Legislature. This Court has no authority to make this new law.
2. Preservation/Judicial Restraint.
In the past, this Court has consistently affirmed and adhered to the principle that we will not address issues that the parties have not raised and argued. See, e.g., Rosier v. State, 276 So.3d 403, 406-07 (Fla. 1st DCA 2019) (en banc) ("An appellate court is `not at liberty to address issues that were not raised by the parties.' ... Nor may an appellate court `depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.'") (cleaned up; first quoting Anheuser-Busch Co., Inc. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013); and then quoting Polyglycoat Corp. v. Hirsch Distribs., Inc. 442 So.2d 958, 960 (Fla. 4th DCA 1983)); State v. Barati, 150 So.3d 810, 814 (Fla. 1st DCA 2014) ("[T]his court ... should not place a higher value on the rendition of a volunteered advisory opinion than on the virtues of judicial restraint.") (cleaned up; quoting Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 462, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)); Pomales v. Aklipse Asset Mgmt., Inc., 336 So.3d 785, 788 (Fla. 3rd DCA 2022) (Miller, J., dissenting) (quoting Barati and explaining "appellate courts must zealously guard against" valuing a volunteered opinion over judicial restraint); see also I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007) (rejecting practice of court's injecting new issues because it means parties "must not only respond to the specific reasons for reversal advanced by the [opposing party] but also anticipate and respond to other reasons for reversal that may be advanced by the reviewing court.").
This principle is foundational to our limited role. The Florida Supreme Court confirms it. Bainter v. League of Women Voters of Fla., 150 So.3d 1115, 1126 (Fla. 2014) ("`Basic principles of due process'— to say nothing of professionalism and a long appellate tradition—`suggest that courts should not consider issues raised for the first time at oral argument' and `ought not consider arguments outside the scope of the briefing process.'") (quoting Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013)). That foundational limitation notwithstanding, the majority injected and ruled on a tangential issue that purports to create a new exception to rule 9.200(f) and make new law for our district (or more). No party raised the payment issue as a limitation on rights under rule 9.200(f). The State never asserted any objection to the motion to supplement; and although invited to do so, did not respond to our order to show cause on the motion. The State did not oppose or otherwise respond to Appellant's motion for rehearing, rehearing en banc, certification of conflict, and certification of a question of great public importance. The majority ought not take on the role of State's counsel and assert issues counsel did not raise and still has not raised. See, e.g., Rosier, 276 So. 3d at 406-07 (emphasizing repeatedly the necessity that parties preserve specific issues and arguments as a prerequisite to our addressing them); Polyglycoat Corp., 442 So. 2d at 960 ("This Court will not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.").
3. Court Resources and Delays.
Unfortunately, by injecting these issues, the majority set off a process that has delayed progress toward disposition in this case and others presenting the same issue. By doing so within a pending case rather than through a hypothetical administrative order ("hypothetical" since I maintain we lack authority to do even that), the rehearing process to which the parties are entitled —and which has a tolling effect under rule 9.300(b)—has had the anomalous effect of granting an extension of time longer than would probably have occurred if we had simply granted supplementation as we always have before. We are consuming judicial resources better devoted to meritorious issues preserved for our consideration and raised by parties before us. As stewards of judicial time, we ought to be aware always of how judicial restraint dovetails with timeliness. See, e.g., Murphy v. Murphy, 342 So.3d 799, 806 (Fla. 1st DCA 2022) (Makar, J., dissenting) (stating he was dissenting only very briefly because "[t]his straightforward appeal of an order exercising jurisdiction over a former husband in a dispute over his military pension has been pending in this Court for over two years"); Collier v. Collier, 343 So.3d 183, 189-90 (Fla. 1st DCA 2022) (Makar, J., concurring in result only) (decrying, in three-years-pending case, practice of "drain[ing] scarce judicial resources excessively" because it "diverts judicial labor from other pending cases and creates unnecessary delays").
4. Precedential Value and Implementation.
The majority opinion raises practical issues that are left unaddressed. If the new rule is that supplementation under rule 9.200(f) is not available when transcription will require expenditure of public funds, how do we determine when that is the case? Does counsel moving for supplementation under rule 9.200(f) have to attest that the requested supplements have already been obtained at no expense to the public? Can that be a mere assertion in the motion, or is a sworn statement required? Is authenticated documentation or an evidentiary hearing necessary? Must we remand for appointment of a magistrate to act as an officer of this Court, conduct an evidentiary hearing, and report back to us with a supplemental record on those proceedings?
This new rule also raises precedential questions. Does this decision bind all future panels of this Court? See Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980) ("The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Supreme] Court."). Does the majority decision prevent trial courts statewide from authorizing transcription at public expense for the purpose of supplementing records on appeal? See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").
In that regard, I note that to date no other district court has adopted the majority's unprecedented ruling, although the Fifth District inherited one of our cases involving the identical issue when it gained appellate jurisdiction over the Fourth Circuit's cases as of January 1, 2023. The case was Brown v. State, Duval County Circuit Court Case No. 16-2019-CF-000578—our case number 1D22-326 and the Fifth District's case number 5D23-56. In Brown, we had issued the same order we issued here requesting the appellant's response about the supplementation issues, and the same lawyer representing Debose here filed the same response in Brown. The case migrated to the Fifth District before we took any further action. Diametrically opposite from the majority's ruling here, the Fifth District merely granted the motion to supplement. Of course, our opinions are merely persuasive as to the other districts. See Pardo, 596 So. 2d at 667.
Conclusion. This all seems far too much for a routine and unopposed motion to supplement the record in which no party raised the majority's injected issue. Fundamentally, we have no authority to create an exception to rule 9.200(f). Further, loading this issue on the back of a pending case has delayed processing of this and many other cases. The time consumed (and yet to be consumed) by this issue could have been directed to legitimately presented issues—that we have authority to address —in other cases. I must therefore respectfully dissent.