County Traffic Court: APPELLATE PROCEDURE Record Without a record, appellate court is unable to determine whether or not the trial court erred in (1)denying motion for judgment of acquittal and (2)for adjudicating defendant guilty in absence of competent substantial evidence to support charge; (3)appellant has failed to demonstrate any legal obligation for the court or state to preserve any record of the testimony-Order affirmed. Commons v. State, CRC044643CFAES(Fla. 6th Cir.App.Ct. September 20, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

LINDA COMMONS,

 

v. CASE NO: 044643CFAES

 

STATE OF FLORIDA

____________________/

 

Appeal from Hearing Officer Ramy Fares, Esq.

 

Linda Commons, Esq.

Office of the State Attorney

 

ORDER AND OPINION

 

Appellant was issued a citation for speeding and was found guilty of unlawful speed after a hearing. Appellant has appealed the judgment, raising several issues for this Court to review. There was no appearance by the State.

In this case, there was no record made below, so appellant filed a  motion to relinquish jurisdiction back to the trial court to obtain an agreed upon statement of the facts. That motion was granted, however appellant complains in her brief that she was unable to obtain an agreed upon statement of the facts since no one in the office of the state attorney has acknowledged assignment of this case.  Furthermore, although she was provided with a name of a state attorney, that state attorney never returned her phone calls. Appellant states "[d]ue to the state's lack of interest in this matter, the court's order relinquishing jurisdiction to accomplish the agreed statement of facts and considering that Hearing Officer Ramy Fares will not take the bench again until June 22, 2005, appellant has no other choice, but to submit a statement of facts as to what she recollects."

 

According to Appellant :

            The court called Trooper Robert Douglass to testify as no State Attorney was present.  Trooper Douglass testified that he did not remember Mrs. Commons generally or specifically as to any speeding charge.  Trooper Douglass was handed the traffic citation by the Court, in an attempt to refresh his recollection.  His memory was not refreshed and he admitted that he did not remember Mrs. Commons.  The traffic ticket was not introduced into evidence, nor was any predicate laid for any testimony about the roving radar speed written on the ticket.

            Mrs. Commons testified that she remembered being mindful of her speed that evening.  She remembered being in moderate traffic and she believed that the Trooper stopped the wrong vehicle, that other cars were traveling over the posted speed limit, and she was not. Mrs. Commons testified that she had seen the Trooper traveling the opposite way two counties back before she was stopped and was surprised by the stop, as she did not do anything wrong.  Mrs. Commons' testimony remained unrebutted.

            The Appellant/Mrs. Commons moved for a judgment of acquittal based on insufficient evidence and therefore the State had not proven its case beyond a reasonable doubt. The Trial Court ultimately denied the motion.   

Appellant raises three issues for review: [1]The trial court erred in denying the appellant's motion for a judgment of acquittal because there was insufficient evidence of speeding; [II] The trial court erred in adjudicating the defendant guilty of speeding because no competent evidence was presented to support each element of the change; [III] The trial court and the state erred in not creating a record of trial proceedings in order to demonstrate that all requirements of due process had been met. 

Without a record, this Court is unable to determine whether or not the trial court erred with regard to issues I and II. As for issue III, appellant has failed to demonstrate any legal obligation for the court or state to preserve any record of the testimony. Accordingly, the trial court's order is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of ___________, 2005.

___________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

__________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

Copies to:

Linda Commons, Esq.

Office of the State Attorney.