       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                       JAMES EDWARD TERRY,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-3978

                           [January 16, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 50-2014-CF-009348-
AXXX-MB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Appellant, James Edward Terry, appeals his judgment and sentence for
possession of cocaine, asserting the trial court erred in connection with
three rulings during his trial and denying his second motion to correct a
sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b).
The second 3.800(b) motion sought a new sentencing proceeding because
the prior resentencing hearing was not recorded. We affirm without
discussion the trial court’s rulings concerning the asserted errors during
trial. We also affirm the denial of Appellant’s second 3.800(b) motion and
explain our analysis. We conclude that Appellant’s failure to seek relief
pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) precluded rule
3.800(b) relief.

                               Background

   Appellant was charged by amended information with sale or possession
of oxycodone with intent to sell within 1000 feet of a school, felon in
possession of a firearm, and possession of cocaine. Subsequently, the
counts were severed. Appellant proceeded to trial on the felon in
possession of a firearm charge first, was found guilty, and was sentenced
to five years in prison. Appellant appealed that conviction and sentence,
which we affirmed per curiam. Terry v. State, 226 So. 3d 845 (Fla. 4th DCA
2017).

   A few months after the first trial, Appellant proceeded to trial on the
possession of cocaine charge, which is the subject of this appeal. After the
jury returned a verdict of guilty, Appellant was sentenced to four years in
prison, consecutive to the sentence for the firearm charge. The original
sentencing hearing for the cocaine charge was conducted on November 18,
2016. Thereafter, Appellant gave notice of the instant appeal.

   During the pendency of this appeal, Appellant filed a motion to correct
his sentence in the trial court pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2), on grounds that the scoresheet improperly included
two open cases. The trial court granted Appellant’s motion and directed
that a separate order would be entered setting a resentencing hearing.

    In June 2017, the trial court conducted a status hearing with regards
to the rule 3.800(b)(2) motion. At the status hearing, the trial court asked
defense counsel what the sentencing error had been and if there had been
a trial. After defense counsel explained the scoresheet error, he reminded
the trial court that there were two trials for Appellant:

      One was the felon in possession of a firearm at his house on
      the search warrant. The second one was the .1 grams of crack
      cocaine, Riviera Beach. I don’t know if that’s ringing any bells
      with you. We did two trials. This was the sentencing on the
      second trial.

Defense counsel also informed the trial court that Appellant’s appeal from
the first case had just been affirmed by this Court. When the trial court
asked what Appellant’s sentence had been in that case, defense counsel
explained that Appellant’s sentence in the first case was five years “and
the second case was four years consecutive, so –” and the trial court then
interjected, “Oh, I must have been mad.”

   A resentencing hearing was conducted on September 20, 2017, with
Appellant present. At resentencing Appellant was again sentenced to four
years in prison, consecutive to the five-year sentence for the felon in
possession of a firearm charge. Subsequently, Appellant moved to
supplement the appellate record with the transcript of the September 20
resentencing hearing. This Court granted the motion. However, it appears
that the resentencing hearing could not be transcribed because it was

                                     2
inadvertently not recorded. Therefore, there is no transcript available for
the September 20 resentencing.

    As a result, on October 31, 2017, Appellant filed a second motion to
correct sentencing error under rule 3.800(b)(2), seeking a new
resentencing hearing because the trial court failed to ensure that the
September 20 resentencing was transcribed. On November 16, 2017, the
trial court “on its own motion,” entered an order scheduling a hearing for
November 21, 2017, to recreate the record (“the sua sponte order”). The
sua sponte order instructed the parties to be prepared to articulate as
closely as possible their positions and arguments made at the September
20 resentencing, noting that the court would not entertain new argument.
Notably, the order made no reference to the pending second rule
3.800(b)(2) motion.

   At the November 21, 2017 proceeding to recreate the record, the State
stated its recollection of its arguments made at the September 20 hearing
and further stated that it was seeking the same sentence. When it was
defense counsel’s turn to articulate his recollection of the September 20
resentencing, he explained that he apparently did not save his notes from
the hearing and did not have an independent recollection of what was said
during the proceeding. For that reason, defense counsel asserted it would
be more appropriate to have a completely new resentencing hearing on the
record. The trial court then advised that although defense counsel did not
have a recollection for purposes of reconstruction, the trial court did have
a clear recollection of this case. The trial court explained:

      The defendant was tried twice with a verdict coming in on
      [February 23] and then again on November 8th. So I had a
      full opportunity to see the defendant and to hear the
      testimony on both of these cases.

      In addition, the defense has filed a motion to correct
      sentencing error. Quite a nice motion. And the State has filed
      a response to the defendant’s motion. So I’m confident that
      that outlines both parties’ position on the matter. And I have
      a specific recall of it.

      I was not even remotely considering sentencing at the bottom
      of the guidelines, based on the testimony and what I saw
      during both trials. And whether or not those two new counts
      were nolle prosequied or not would not have affected this
      Court’s position on what the appropriate sentence is.


                                     3
   Thereafter, the trial court orally stated it was resentencing Appellant to
four years imprisonment consecutive to the felon in possession of a firearm
charge. Subsequently, Appellant filed an initial brief in this Court
asserting errors during the trial and the proceeding conducted on
November 21, 2017.

                            Appellate Analysis

    The standard of review for a motion to correct a sentencing error is de
novo. Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009). The
standard of review regarding a trial court’s exercise of case jurisdiction
while an appeal is pending is de novo. See Rogers v. State, 33 So. 3d 805,
806 (Fla. 1st DCA 2010) (applying de novo review regarding “whether the
trial court had jurisdiction, after appellant filed his notice of appeal, to
issue written orders memorializing its prior oral pronouncements”).

    Regarding his sentence, Appellant claims that reversal is required
because the trial court (1) did not have jurisdiction to enter the sua sponte
order and conduct the proceeding on November 21; and (2) erred in
denying his second 3.800(b) motion because there was no transcript of the
resentencing on September 20 and the only appropriate remedy was to
grant another sentencing hearing, since defense counsel could not recall
what was said at the September resentencing. We construe Appellant’s
argument regarding jurisdiction to refer to case jurisdiction, meaning
whether the trial court had the authority to act. MCR Funding v. CMG
Funding Corp., 771 So. 2d 32, 35 (Fla. 4th DCA 2000) (“‘Case’ jurisdiction
is the ‘power of the court over a particular case that is within its subject
matter jurisdiction.’” (quoting T.D. v. K.D., 747 So. 2d 456, 457 n.2 (Fla.
4th DCA 1999))); Trerice v. Trerice, 250 So. 3d 695, 698 (Fla. 4th DCA
2018) (“The concept of ‘the power of the court over a particular case’ is
rooted in the notion that given the procedural posture of the case, the court
is without authority to act.”).

   An initial issue is the proper characterization of the November 21
proceeding. In the briefs, the parties fluctuate between referring to the
November 21 proceeding as a “resentencing” hearing and as a hearing to
“reconstruct the record.” The lack of clarity understandably flows in part
from the fact that the sua sponte order is entitled “Order Resetting
Resentencing,” yet the body of the order makes no reference to the second
rule 3.800(b) motion and clearly states the purpose of the hearing is to
reconstruct the record. Adding to the confusion is the fact that the trial
court made an oral pronouncement at the conclusion of the November 21
proceeding that it was sentencing Appellant to four years for possession of
cocaine, consecutive to the sentence for possession of a firearm by a felon,

                                     4
nunc pro tunc the original sentencing date, yet failed to enter a written
sentence after the proceeding. Additionally, the trial court did not enter a
written order approving a statement of the evidence and proceeding after
the conclusion of the November 21 proceeding.

    Appellant argues that since the sua sponte order and the November 21
proceeding made no reference to his second rule 3.800(b) motion, the
motion is deemed denied because the trial court did not rule on it within
sixty days. See Fla. R. Crim. P. 3.800(b)(1)(B). Appellant argues such
denial was error. The State argues the trial court properly denied the
second motion by the November 21 proceeding, and there was no error as
to the “resentencing” on that date.

   Addressing the fluctuations in characterizations, we do not construe
the November 21 proceeding as a resentencing hearing because the record
is clear that Appellant was not present at that time, and no written
sentence was entered thereafter. Instead, as stated in the body of the order
setting the hearing, we construe the November 21 proceeding as an
attempt to reconstruct the record.

   We first address the denial of Appellant’s second rule 3.800(b) motion.
Because we construe the sua sponte order and the November 21
proceedings to be an attempt to reconstruct the record, we conclude that
the order and proceeding do not constitute a denial of the motion. Instead,
we conclude that the motion is deemed denied by the trial court’s failure
to file an order ruling on the motion within sixty days. Fla. R. App. P.
3.800(b)(2)(B).

    Appellant argues the trial court erred in denying the second motion
because the trial court failed, as to the September 20 resentencing, to
comply with its obligations under Florida Rule of Criminal Procedure 3.721
and Florida Rule of Judicial Administration 2.535(h)(1). Rule 3.721
provides that “[t]he sentencing court shall ensure that a record of the
entire sentencing proceeding is made and preserved in such a manner that
it can be transcribed as needed.” Fla. R. Crim. P. 3.721. Rule 2.535(h)(1)
provides that “[a]ll proceedings required by law, court rule, or
administrative order to be reported shall be reported at public expense.”
Fla. R. Jud. Admin. 2.535(h)(1).

   We begin our analysis with the long-recognized principle that on
appeal, “the defendant bears the burden of demonstrating that an error
occurred in the trial court.” Jones v. State, 923 So. 2d 486, 488 (Fla. 2006)
(quoting Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999)). As part of
that burden, appellants must submit to the appellate court a record


                                     5
adequate to support the appeal. Carter v. Carter, 504 So. 2d 418, 419 (Fla.
5th DCA 1987).

   Appellant is correct that under rules 3.721 and 2.535(h)(1), the trial
court had an obligation to create a recording of the resentencing conducted
on September 20. It is also true that “[o]nce a criminal defendant has
chosen to exercise his right to appeal, he is entitled to a full transcript of
the trial record.” Hamilton v. State, 573 So. 2d 109, 110 (Fla. 4th DCA
1991) (citation omitted). However, the case law is replete with cases in
which, for a myriad of reasons, all or portions of trial proceedings were not
recorded or a transcript of the proceedings was not available.

   Although neither party devotes much analysis to the application of
Florida Rule of Appellate Procedure 9.200(b)(4) to this case, we find it
controlling. The rule provides that:

      (4) If no report of the proceedings was made, or if the transcript
      is unavailable, a party may prepare a statement of the
      evidence or proceedings from the best available means,
      including the party’s recollection. The statement shall be
      served on all other parties, who may serve objections or
      proposed amendments to it within 10 days of service.
      Thereafter, the statement and any objections or proposed
      amendments shall be filed with the lower tribunal for
      settlement and approval. As settled and approved, the
      statement shall be included by the clerk of the lower tribunal
      in the record.

Fla. R. App. P. 9.200(b)(4) (emphasis added). It is precisely because all
human endeavors are prone to occasionally experience oversights or
mishaps that the supreme court promulgated rule 9.200(b)(4).

    The case law is clear that in certain instances, the fact that a transcript
is not available has required a new trial or proceeding. See, e.g., Delap v.
State, 350 So. 2d 462, 463 (Fla. 1977). However, our research reveals that
in every instance in which a new trial or proceeding was ordered because
of the lack of a transcript, the appellate court also determined that a
statement of the evidence or proceedings pursuant to rule 9.200(b)(4) was
unobtainable. See Jackson v. State, 851 So. 2d 837 (Fla. 2d DCA 2003)
(determining that the absence of a sentencing hearing transcript and the
inability of the parties or the court to reconstruct the record required
reversal and remand for resentencing); Thomas v. State, 828 So. 2d 456,
457 (Fla. 4th DCA 2002) (remanding case for a new trial because missing
portion of the transcript was necessary for a complete review and


                                      6
omissions could not be reconstructed); Felton v. State, 523 So. 2d 775, 776
(Fla. 3d DCA 1988) (“[I]n the event that, after determined efforts of the trial
participants, reconstruction of the trial is found to be impossible, the trial
court should so certify” to the appellate court).

    Additionally, “not all omissions of transcript result in reversal for a new
trial.” Velez v. State, 645 So. 2d 42, 44 (Fla. 4th DCA 1994). When
transcripts are not available, “[t]he question to be asked is whether the
portions are necessary for a complete review.” Id. (emphasis omitted). In
Velez, we agreed with an analysis by the Eleventh Circuit, regarding the
effect of missing parts of the trial record, that it is incumbent on the
appellant to demonstrate how the defective transcript prejudiced his direct
appeal in order to be entitled to appellate relief. Id. The conviction in Velez
was affirmed because the missing portions of the record were not
necessary for a full review, since the matters raised as error could be
disposed of as a matter of law. Id.

   The legal principles and analysis articulated in Velez were cited and
approved by our supreme court in Darling v. State, 808 So. 2d 145 (Fla.
2002) and Jones. In Darling, a death penalty case, the appellant argued
that because there were no records of certain pretrial hearings, precluding
meaningful review of his claims, he was entitled to a new trial. 808 So. 2d
at 163. Comparing the case to the situation presented in Velez, the court
concluded that Darling’s claim lacked merit because he failed to
demonstrate what specific prejudice to complete appellate review, if any,
was caused by the missing transcripts. Id.

    Likewise, Jones is particularly instructive for our analysis in this case.
In Jones, appellate counsel filed a motion to relinquish jurisdiction to
reconstruct the record because the transcript of jury selection was not
available. 923 So. 2d at 487. During an evidentiary hearing to reconstruct
the record, trial counsel testified that he could not accurately recall the
jury selection proceedings but that he typically makes objections during
the voir dire. Id. The defendant testified as to some vague memory of the
voir dire proceedings suggesting his counsel made a Neil-Slappy 1 objection
to a peremptory challenge by the State. Id. After the hearing, the trial
court ruled that the record could not be reconstructed, prompting Jones
to assert on appeal that he was entitled to a new trial because his appellate
counsel was unable to determine if prejudicial error occurred during jury



1State v. Neil, 457 So. 2d 481 (Fla. 1984); State v. Slappy, 522 So. 2d 18 (Fla.
1988).


                                       7
selection. Id. at 488. We rejected that argument, relying in part on Darling
and Velez. See Jones v. State, 870 So. 2d 904, 905 (Fla. 4th DCA 2004).

   After analyzing a series of its decisions confronting issues of appellate
review where transcripts were missing or unavailable, on further review
our supreme court said: “It is therefore clear that under our precedent,
this Court requires that the defendant demonstrate that there is a basis
for a claim that the missing transcript would reflect matters which
prejudice the defendant.” Jones, 923 So. 2d at 489. Thus, because
defense counsel in Jones could not remember if Neil-Slappy challenges
were made and Jones’s testimony about the challenges was vague, the
court concluded that Jones’s assertions on appeal were based on pure
conjecture and his memory of possible objections made by his trial
counsel, unsupported by any of the other evidence, did not show reversible
error. Id. at 490.

    Similar to Jones, in the instant case, Appellant has not articulated a
clear explanation of an error by the trial court at the September 20
resentencing. Appellant speculates, based on a comment by the trial court
during a status hearing leading up to the September 20 resentencing, that
the trial court “must have been mad” at the resentencing. However, as the
State points out, Appellant has not clearly asserted a contention that the
trial court sought to punish Appellant for going to trial, and instead
apparently seeks a transcript to see if such a claim can be made.
Additionally, as the State points out, Appellant has not sought to disqualify
the trial judge. Thus, at this point, Appellant’s contentions that another
resentencing is warranted appears to be based on speculation.

   In the instant case, upon discovering there was no transcript of the
resentencing on September 20, Appellant did not seek to obtain a
statement of evidence and proceedings pursuant to rule 9.200(b)(4).
Instead, Appellant sought relief by filing a second rule 3.800(b) motion.
Because there is no transcript of the September 20 resentencing or an
adequate substitute, Appellant has not demonstrated he is entitled to relief
under rule 3.800(b).

   Finally, we address Appellant’s argument that the trial court lacked
jurisdiction to enter the sua sponte order and conduct the November 21
proceeding. We assume the trial court was aware of rule 9.200(b)(4) and
that knowledge prompted the sua sponte order setting a hearing to recreate
the record of the September 20 resentencing.

   We disagree with Appellant’s argument that the trial court did not have
case jurisdiction to recreate the record without a relinquishment order


                                     8
from this Court. See Udell v. Udell, 998 So. 2d 1168, 1170 (Fla. 2d DCA
2008) (“For the edification of the parties and the trial court, we note that
the rule [9.200(b)(4)] authorizes — indeed, requires — the lower court’s
participation in this process, and no order from this court should be
necessary.” (underlined emphasis added)). We also note that the purpose
of rule 9.200(b)(4) is different from Florida Rule of Appellate Procedure
9.200(f), which is designed to address situations in which the trial record
exists, but may have errors or may not have been fully submitted to the
appellate court. We further construe the time limit regarding concurrent
jurisdiction established by Florida Rule of Appellate Procedure 9.600(a),
which ends when the trial court record is docketed in the appellate court,
to apply to rule 9.200(f) and not rule 9.200(b)(4). We reach that
construction because rule 9.200(f) references a time limit, whereas rule
9.200(b)(4) does not. Compare Fla. R. App. P. 9.200(f) (“If there is an error
or omission in the record, the parties by stipulation, the lower tribunal
before the record is transmitted, or the court may correct the record.”
(emphasis added)), with Fla. R. App. P. 9.200(b)(4) (“If no report of the
proceedings was made, or if the transcript is unavailable, a party may
prepare a statement of the evidence or proceedings from the best available
means, including the party’s recollection.”). Thus, we conclude the trial
court did have case jurisdiction to reconstruct the record in this case. 2

   Despite its jurisdiction to reconstruct the record, we note that the trial
court did not follow proper procedure under rule 9.200(b)(4) for preparing
a statement regarding the evidence or proceedings. As can be seen from
the rule, the proper procedure begins with one of the parties preparing a
statement based on the party’s recollection. Fla. R. App. P. 9.200(b)(4).
The statement prepared by one of the parties is to be served on the
opposing party, who may serve objections or proposed amendments. Id.
“Thereafter, the statement and any objections or proposed amendments
shall be filed with the lower tribunal for settlement and approval. As
settled and approved, the statement shall be included by the clerk of the
lower tribunal in the record.” Id.

   Below, the trial court did not order the parties to file and serve any
written statements, objections, or proposed amendments in advance of the
November 21 hearing. Prior to attending the November 21 proceeding,
neither party knew what the other would recall about the evidence and
statements made at the September 20 resentencing. Instead, the trial


2 We note that in addition to rule 9.200(b)(4), another option for reconstructing
the record is for the parties to enter into a stipulated statement regarding the
record pursuant to Florida Rule of Appellate Procedure 9.200(a)(3).


                                       9
court required the parties to present an oral presentation of their
recollections during the hearing. From a due process viewpoint, such a
procedure, for something as complicated as a resentencing, is problematic.
Sometimes a discussion of what one participant remembers jogs a memory
for another participant. Additionally, and perhaps more importantly, the
trial court did not comply with rule 9.200(b)(4) by failing to enter a written
order settling and approving the statement of evidence and proceedings.

   We note that Appellant has not specifically framed his argument
around noncompliance with rule 9.200(b)(4). Thus the issue is waived.
See Thier v. State, 84 So. 3d 365, 366 (Fla. 4th DCA 2012).

   Having determined that Appellant has not demonstrated reversible
error, we affirm the trial court.

   Affirmed.

TAYLOR and KUNTZ, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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