Opinion
Case No. 3D01-1870.
Opinion filed March 5, 2003.
An appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. Lower Tribunal No. 99-26641.
Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
Charlie Crist, Attorney General and John Barker, Assistant Attorney General, for appellee.
Before GERSTEN, GREEN, and FLETCHER, JJ.
Octavio Arnulfo Hernandez appeals his conviction for murder in the second degree with a deadly weapon, and requests a new trial.
On this appeal, Hernandez claims that he wants to challenge the trial court's refusal of an additional peremptory challenge. The parties agree that due to court reporter carelessness, the transcript of the voir dire proceeding is missing and unable to be retrieved or reconstructed. In addition, the parties have been unable to reconstruct the record. Consequently, Hernandez is unable to receive meaningful appellate review, and is thus, entitled to a new trial. See Delap v. State, 350 So.2d 462, 463 (Fla. 1977) (holding that where portions of the trial transcripts are unavailable, can not be reconstructed, and are necessary for a complete appellate review, a motion for a new trial should be granted); see also Swain v. State, 701 So.2d 675 (Fla. 3d DCA 1997) (granting new trial where voir dire transcript could not be recovered); Blasco v. State, 680 So.2d 1052 (Fla. 3d DCA 1996) (same); Rozier v. State 669 So.2d 353 (Fla. 3d DCA 1996) (same).
Reversed and remanded for a new trial.