County Traffic Court:  TRAFFIC INFRACTIONS - If the court provides for the recordation of traffic court proceedings, the burden of improper recording should fall on the government and not the individual defendant. To avoid such a result, the court must properly record the proceedings or advise defendants that they must make the recording; or if the court records the proceedings, then it must inform defendants that they cannot rely on it in any way to meet their appellate responsibility of providing a record. Von Spears v. State, No. CRC 00-5623 CFANO (Fla. 6th Cir.Ct. Feb. 21, 2001).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

IRIC VON SPEARS

           Appellant,

v.                                          Appeal No. CRC 00-5623 CFANO

STATE OF FLORIDA

          Appellee.

__________________________/

Opinion filed ______________.

Appeal from a judgment and sentence

entered by the Pinellas County Court

Hearing Officer Julee Milham

Iric Von Spears

Pro Se

Christy Donovan Pemberton, Esq.

Assistant County Attorney

ORDER AND OPINION

      THIS MATTER is before the Court on Iric Von Spears’ appeal of a judgment and sentence entered against him by the Pinellas County Traffic Court. The appellee’s response is insufficient. Therefore, this Court must vacate the judgment and sentence and

remand for a new trial.

       In civil proceedings appellants must provide a sufficient record for appeal or they cannot prevail. See Carter v. Carter, 504 So.2d 418 (Fla. 5th DCA 1987). However, in criminal, juvenile proceedings, “and any other judicial proceedings required by law or court rule to be reported at public expense” (emphasis added)the government must record the proceedings. Fla. R. Jud. Admin. 2.070. Failure to do so may prevent effective review and require reversal. See Blalock v. Rice, 707 So.2d 738 (Fla. 2d DCA 1997).

      The case at bar is a traffic case -- neither criminal nor juvenile. The applicable traffic rule provides: “The provision and operation of the recording equipment shall be the responsibility of the defendant unless otherwise provided by the court.” Fla. R. Traf. Ct. 6.460(b). Thus, in traffic cases, the court rule requires that the defendant must record the proceedings only if the court has not provided for such recordation. In other words, the traffic rule requires that if the court has made provision for such recordation, the defendant need not record it in order to preserve matters for appeal. Locally, the court has provided for such recordation.

      Since recordation is required by rule under certain circumstances, the aforementioned Rule of  Judicial Administration mandates that the court make the recording available to the defendant. The court may comply by properly recording the proceedings or advising defendants that they must make the recording. The court may also advise defendants that, although the court is recording the proceedings, defendants cannot rely on it in any way to meet their responsibility on appeal, and whatever record is secured will be the one filed with the clerk in the event of an appeal. Since the Hearing Officer cannot state that such warnings were given, and nothing else in the record demonstrates this, the burden of the improper recording of the hearing should fall on the government and not the individual defendant in this case.

          IT IS THEREFORE ORDERED that the judgment and sentence are vacated and this case is remanded to the traffic court for a new trial.

      DONE AND ORDERED in Chambers at St.Petersburg, Pinellas County, Florida this _____ day of February, 2001.

 

____________________________
David A. Demers
Circuit Judge, Appellate Division

 

cc:   County Attorney

         Iric Von Spears