Joshua Alexis Justiniano-Nazario v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: January 24, 2025
• Docket: 6D2024-0832
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2024-0832 Lower Tribunal No. 2023-CF-001656-A-O _____________________________

JOSHUA ALEXIS JUSTINIANO-NAZARIO,

Appellant, v.

STATE OF FLORIDA,

Appellee. _____________________________

Case No. 6D2024-0863 Lower Tribunal No. 2023-CF-003118-A-O _____________________________

WILLIE FRANK MORGAN, III,

Appellant,

v.

STATE OF FLORIDA, Appellee. _____________________________

Appeals from the Circuit Court for Osceola County. Keith A. Carsten, Judge. ____________________________

Case No. 6D2024-0968 Lower Tribunal No. 2017-CF-001652-A-O _____________________________

MINH LAM,

Appeal from the Circuit Court for Orange County. Leticia Marques, Judge.

January 24, 2025

ON MOTIONS TO ENFORCE

TRAVER, C.J.

In these cases addressed together to resolve identical motions, the Public

Defender for the Tenth Circuit (“PD10”) seeks to enforce our orders granting its

motions to supplement the appellate record on behalf of its indigent clients. See Fla.

R. App. P. 9.200(e). Although the Chief Judge of the Ninth Judicial Circuit, acting

in her official capacity, raises meritorious questions about the utility of PD10’s

supplementation requests, we grant PD10’s motions because Florida Rule of

Appellate Procedure 9.600 compels it.

2 This issue first arose when PD10 engaged in its regular practice of seeking to

supplement the appellate record following its transmission to this Court. 1 See Fla.

R. App. P. 9.140(f)(1). Citing Florida Rule of Appellate Procedure 9.200(f), PD10

asserted, without explanation, that it needed to supplement the record on appeal.

PD10 then listed a series of items that, with one exception, were transcripts of not-

yet-transcribed trial court hearings. Contemporaneously, PD10 filed supplemental

transcript designations in the trial court.

We granted PD10’s requests, directing it to arrange with the lower tribunal

clerk to supplement the records with the items listed in PD10’s motions. These

orders also set deadlines for the supplemental record’s transmission and the initial

brief’s deadline. The Chief Judge, however, treated PD10’s supplemental transcript

designations as facially insufficient motions to “expand the transcripts,” which she

denied without prejudice. See Fla. R. App. P. 9.140(f)(2)(B). She noted that because

the transcripts would be prepared at taxpayer expense, PD10 should outline a good-

faith basis for its request. Relying on a recent decision from our sister court, the

Chief Judge concluded that rule 9.140(f)(2)(B) required PD10 to make this showing

before it could obtain an official transcript. See Dubose v. State, 359 So. 3d 368,

372 (Fla. 1st DCA 2023). The Chief Judge noted that PD10 could obtain electronic

1 PD10 handles all circuit and county court appeals on behalf of the Public Defender for the Ninth Circuit. See § 27.51(4)(b), Fla. Stat. (2024). 3 rough draft transcripts or audio recordings of the hearings for free, and then specify

the reason it needed official transcripts for its appeals.

PD10 moved to enforce our supplementation orders. See Fla. R. App. P.

9.200(e). It argued that because we had docketed the appellate record in each case,

the trial court had lost jurisdiction to render orders on matters relating to these

appeals. See Fla. R. App. P. 9.600(a). It also urged us to certify conflict with

Dubose, claiming that the First District ignored rule 9.600(a)’s plain text,

disregarded PD10’s Anders 2 obligations, and misapprehended PD10’s payment

arrangements with the Ninth Judicial Circuit for public transcripts. We entered a

detailed briefing order, requiring responses from the State, the Orange County Clerk

of Court, and the Osceola County Clerk of Court. We offered the Chief Judge an

opportunity to respond and directed PD10 to file a reply. Each entity filed detailed

submissions, which we carefully analyzed. 3

We conclude that the Chief Judge lacked jurisdiction to deny PD10’s

transcription requests absent an order that relinquished jurisdiction to the trial court.

See Fla. R. App. P. 9.600(a). Rule 9.600(a) grants the trial court concurrent

2 Anders v. California, 386 U.S. 738 (1967). 3 In addition to these three cases, we originally entered identical briefing orders in seven other cases. But we have since denied PD10’s motions to enforce in those cases as moot—six because the court reporters transcribed the transcripts and one because the trial court hearing had not been recorded. 4 jurisdiction with appellate courts “to render orders on any other procedural matter

relating to this cause” until the appellate record is docketed. After that time, the trial

court may only proceed with an appellate court’s permission. See Fla. R. App. P.

9.600(b); see also Witham v. State, 311 So. 3d 34, 34 n.1 (Fla. 4th DCA 2021) (“The

rules do not preclude the early filing of the record, but this cuts off the trial court’s

concurrent jurisdiction to enter ministerial orders.”).

We acknowledge the Chief Judge’s concern over the efficient use of taxpayer

dollars. And we share her confusion as to why PD10 sought certain transcripts. For

example, it demanded transcripts of multiple status hearings where the trial court

took no evidence and issued no substantive ruling. PD10 offers no compelling

explanation why it could not avail itself of free materials to determine whether these

hearings could advance any appellate argument it might make on its clients’ behalf.

In Dubose, the First District denied in part the Public Defender for the Eighth

Circuit’s supplementation request, expressing similar concerns about the waste of

taxpayer dollars and the failure to use free resources to determine potential appellate

issues. See 359 So. 3d at 372. Because Dubose involved a different procedural

posture, we decline PD10’s invitation to certify conflict with it.4 Similarly, none of

4 We note, however, that the Appellate Rules Committee proposed an amendment to rule 9.140 in response to a Florida Supreme Court referral letter referencing Dubose. See In re: Amends. to Fla. R. App. P. 9.140, No. SC2024-0398 (filed Mar. 18, 2024). That case remains pending. 5 PD10’s supplementation requests referenced its Anders obligations to master the

trial record, so we do not consider that issue. See McCoy v. Ct. of Appeals of Wisc.,

Dist. 1, 486 U.S. 429, 438 (1988). Finally, we observe that disputes between PD10

and the Ninth Judicial Circuit relating to the funding and cost-sharing of due process

costs is a matter properly addressed by the Florida Legislature. We merely note that

this Court may give more careful consideration to PD10’s future supplementation

requests, as well as the Chief Judge’s request that going forward, we relinquish

jurisdiction to the trial court to consider supplementation requests and enter a prompt

ruling.

We grant PD10’s motions to enforce. If the materials contained in PD10’s

motions to supplement have not yet been transcribed, the Ninth Circuit’s court

reporters must transcribe and transmit them to the lower tribunal clerk within twenty-

five days of this opinion’s issuance. The lower tribunal clerk must transmit the

supplemental record within thirty days. PD10’s initial briefs are due within twenty

days of the supplemental record’s transmission. Noting the nature of the

supplemental records requested and PD10’s ample time to review the record and

transcripts in these cases, motions for enlargement of time will be disfavored.

GRANTED.

STARGEL and WOZNIAK, JJ., concur.

6 Blair Allen, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellants.

Attorney General, Tallahassee, and Richard A. Pallas, Jr., Assistant Attorney General, Daytona Beach, for Appellees.

Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Orange County Clerk of Courts, Tiffany Moore Russell.

Christopher Mack, General Counsel, Kissimmee, for Osceola Clerk of the Circuit Court & County Comptroller, Kelvin Soto, Esq.

The Honorable Lisa T. Munyon, Chief Judge of the Ninth Judicial Circuit, Orlando.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED