Shields v. State

Full title: TIMOTHY SHIELDS, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Jul 6, 2011

No. 4D08-1710 (Fla. Dist. Ct. App. Jul. 6, 2011)

Opinion

No. 4D08-1710.

July 6, 2011.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562001CF003907A.

Timothy Shields, Orlando, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee, State of Florida, seeks rehearing from this Court's opinion in Shields v. State, 59 So. 3d 385 (Fla. 4th DCA 2011) to the extent that this Court reversed and remanded in part given the absence of findings of fact and conclusions of law on certain claims entertained at an evidentiary hearing. The State now advises that the court actually did announce its findings and conclusions at a "second proceeding" which was not made part of the record on appeal. The State did not move to supplement the record to include that proceeding in the record on appeal and does not explain why it was not included in this appeal before now. Instead, it has filed a copy of the transcript directly in this court to support its motion for rehearing. For the reasons hereinafter stated we deny the motion for rehearing.

The State has failed to show that this Court has overlooked or misapprehended any points of law or fact in its decision, given the record on appeal before the Court. Fla.R.App.P. 9.330(a). Moreover, the State has failed to do what was necessary for this Court to consider the transcript as part of a supplemental record on appeal under Florida Rule of Appellate Procedure 9.200(f).

We acknowledge that the trial judge presiding at the post-conviction proceeding may have made the requisite findings and conclusions. However, without an official record on appeal, our opinion must stand. Notwithstanding the deficiencies in the record, on remand we are not requiring that the trial court conduct further proceedings provided that the official record contains such findings and conclusions of law on all issues not summarily denied. In that event, the trial court shall enter a final order reflecting its oral pronouncements and, further, include that part of the official record containing such findings and conclusions. The State has the duty to ensure that a complete record is provided to this Court in the event that Appellant should file a new notice of appeal from that order.

Rehearing denied; Mandate re-issued.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.