Hill v. State

471 So. 2d 567, 10 Fla. L. Weekly 1335, 1985 Fla. App. LEXIS 14774

Opinion

ON MOTION TO CLARIFY/MOTION TO TOLL TIME/MOTION TO RULE/MOTION TO TAKE JUDICIAL NOTICE

PER CURIAM.

On April 8, 1985, appellant filed a motion to strike the appendix to appellee’s answer brief on the ground that it contained documents not part of the record before this court. A show cause order was entered and appellee responded, asserting, among other things that the documents in question were introduced as exhibits in the lower court. Therefore, appellee maintained they were properly included in the appendix, and moved alternatively to supplement the record with the documents.

On May 7, 1985, the following order was entered by this court:

Appellant’s motion to strike appendix to appellee’s answer brief is granted. Ap-pellee shall file an amended brief omitting the unauthorized appendix and any references thereto within five days of the date of this order, [emphasis supplied]

Appellee has filed the present motion in which counsel states that the May 7 order failed to rule on the motion to supplement the record • and in which counsel again states that the documents were admitted as exhibits in the proceedings below. Appel-lee’s assertions are not well taken.

Although not including the specific words “appellee’s motion to supplement the record is denied”, the May 7, 1985, order explicitly found that the appendix was unauthorized, thereby implicitly denying the motion to supplement the record with the documents contained in that appendix. Appellant insists that the documents were introduced as exhibits below but fails to substantiate the proposition in any manner. In addition, we have ourselves examined the file and the transcript and find no reference to the admission of these documents into evidence below. Counsel for appellee should not have to be told that the appellate courts do not create records, nor do statements of counsel serve to create a record. While the documents may have been subject to judicial notice below, the place for securing such notice is in the trial court. See Hillsborough County Board of County Commissioners v. Darsey, 424 So.2d 132 (Fla. 1st DCA 1982).

For the foregoing reasons, all of appel-lee’s motions filed to date in this cause are denied.

BOOTH, WIGGINTON and BARFIELD, JJ., concur.