         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-0171
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JAMES R. MURRAY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Brantley Clark, Jr., Judge.

                       February 8, 2018


BILBREY, J.

     James R. Murray appeals his convictions for arson and
burglary of a dwelling raising multiple grounds of unpreserved
error and a claim that defense counsel rendered ineffective
assistance as demonstrated on the face of the record. We find no
fundamental error with regard to the jury instructions, comments
of the State during closing argument, or the sufficiency of the
evidence to support the elements of the charged offenses.
Likewise, we find no deficient performance by defense counsel
apparent on the face of the record which might be addressed on
direct appeal. See Morales v. State, 170 So. 3d 63 (Fla. 1st DCA
2015).
     The remaining issue is Appellant’s claim that the absence of
the jury charge conference from the trial transcript in the
appellate record due to a technical failure and through no fault of
Appellant entitles him to a new trial. However, Appellant fails to
assert or show by any indication in the existing record that he
objected to the jury instruction at issue at any time during the
trial proceedings and that his right to appellate review is
prejudiced by the omission of a transcript of the charge
conference. A missing portion of the trial transcript does not
require a new trial unless the defendant/appellant can
demonstrate the basis for the alleged error, such as a statement
of “the grounds upon which she claimed error occurred during the
trial.” Louisias v. State, 985 So. 2d 1181, 1183 (Fla. 3d DCA
2008). As stated in Jones v. State, 923 So. 2d 486, 489 (Fla.
2006), “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.” Without a “claim of prejudice, specific or otherwise”
made or demonstrated “as a consequence of the trial court’s
actions,” the fact that a portion of the transcript of the trial is
missing does not mandate reversal. Perez-Sovias v. State, 95 So.
3d 327, 332 (Fla. 3d DCA 2012) (holding that appellant not
entitled to new trial based on transcript of voir dire, which
included portions in Spanish which were not translated).

     No motion for new trial appears in this record, and there is
no indication that Appellant ever objected or challenged the
standard jury instruction for the stealthy entry inference on a
burglary charge as given at trial. See § 810.07(1), Fla. Stat.
(2016); Fla. Std. Jury Instr. (Crim.) 13.1. To the contrary, the
available transcript includes defense counsel’s agreement to the
jury instructions and her agreement that no additional matters
needed to be added to the record at the conclusion of the
proceedings. Finally, even if Appellant had contested the use of
the standard instruction in this case, and thus was able to
proceed on appeal under a harmful error standard rather than a
fundamental error standard, Appellant does not assert and
cannot point to any prejudice to his defense from the use of the
instruction. See Reed v. State, 208 So. 3d 1231, 1234 (Fla. 1st
DCA 2017) (holding the lack of evidence made stealthy-entry
instruction erroneous, but harmless error where State and

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defense “barely mentioned” the inference of intent in their
respective closing arguments).

    Accordingly, the judgment and sentence on appeal are
AFFIRMED.

ROBERTS and KELSEY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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