Opinion
1D22-1490
05-08-2023
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.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Alachua County. David P. Kreider, Judge.
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 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 recordsupplementation 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.