Hernandez v. State

District Court of Appeal of Florida

Hernandez v. State

838 So. 2d 683, 2003 Fla. App. LEXIS 2619, 2003 WL 728941

CourtDistrict Court of Appeal of Florida

DecidedMarch 5, 2003

DocketNo. 3D01-1870

StatusPublished

This text of 838 So. 2d 683 (Hernandez v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hernandez v. State, 838 So. 2d 683, 2003 Fla. App. LEXIS 2619, 2003 WL 728941 (Fla. Ct. App. 2003).

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Opinion

PER CURIAM.

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.

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PER CURIAM.

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.

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838 So. 2d 683, 2003 Fla. App. LEXIS 2619, 2003 WL 728941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-fladistctapp-2003.

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