appeal from the Circuit Court for Alachua County. David P.
A. Daniels, Public Defender, and Victor Holder, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Michael Schaub, Assistant
Attorney General, Tallahassee, for Appellee.
ON MOTIONS FOR REHEARING AND SUPPLEMENTING THE
both the State's motion for rehearing and the State's
motion to supplement the record. Our denial of the
State's motion for rehearing is based on our original
opinion; we write only to comment on the State's attempt
to supplement the record with evidence that was not presented
to the trial court. The
sought to supplement the record with proof that it had
entered a detainer on appellant, while nonetheless
recognizing that the alleged detainer and the circumstances
surrounding the service of the detainer had never been
presented to the trial court.
noted by appellant, "[a]n appellate court will not
consider evidence that was not presented to the lower
tribunal because the function of an appellate court is to
determine whether the lower tribunal committed error based on
the issues and evidence before it." Thornber v. City
of Ft Walton Beach, 534 So.2d 754, 755 (Fla 1st DCA
1988) This court in Thornber further noted that Florida Rule
of Appellate Procedure 9200(f), which allows for correcting
and supplementing the record, "is not intended to
correct inadequacies in the record which result from a
failure of a party to make a record below" Id.
See also Cotton v State, 177 So.3d 666, 668 (Fla 1st
DCA 2015) (holding that the State could not, in order to
establish Cotton's competency, supplement the record in
one case with a competency evaluation that had been filed in
a separate case against Cotton, noting, "We decline this
request because we are not at liberty to add to this record
documents that were never filed with the lower tribunal in
this case and that there is no evidence the trial court
reviewed") We agree with appellant that the State's
attempt to supplement the record is improper and, therefore,
deny the motion.
WETHERELL, J, CONCUR S; KELSEY, J., DISSENTS WITH OPINION.
KELSEY, J., dissents.
respectfully dissent from the majority's denial of the
State's motion for rehearing. The State moved for
rehearing because, given the majority opinion's heavy
reliance on the presumed absence of a detainer even though
the trial court did not even weigh the detainer as a factor,
the State obtained, and filed with the trial court, copies of
the detainer that was in fact lodged against Defendant, and
the Georgia Department of Corrections' acknowledgment of
that detainer. The State requested that we accept those
documents as a supplement to the record on appeal, and argued
that the majority analysis should not have rested so heavily
on Defendant's unproven assertion that there was no
with the majority that we cannot allow the record on appeal
to be supplemented with newly-obtained evidence that was
never presented to or reviewed by the lower tribunal.
However, even if the record properly included the detainer
and acknowledgment in connection with both parties'
arguments that the other was negligent in failing to try
Defendant in Florida quickly, those documents would not have
resolved the substantive issue for two reasons. First, the
detainer was not filed until a year after Defendant was
incarcerated in Georgia, thus leaving open the question of
whether that one-year delay violated Defendant's speedy
trial rights-a question I would answer in the negative under
section 775.15(5)(b), Florida Statutes (2004), as explained
in my merits dissent. Second, the detainer and
acknowledgement do not prove that Georgia prison officials
followed the proper procedures to advise Defendant of his
rights and the process for demanding speedy trial. At trial,
defense counsel denied there was a detainer, and without a
detainer in evidence, the state relied on unrefuted evidence
that Defendant had actual knowledge of the Florida charges
against him through his probation officer. Thus, the detainer
argument is a red herring both procedurally and
precisely the ineffectiveness of the detainer argument that
compels me to agree with the State that this Court should not
rest its analysis on the assumption that there was no
detainer-an assumption that has now been proven false, albeit
by extra-record evidence. As I noted in my merits dissent,
there was evidence in the record indicating that a detainer
had likely been filed, which I would have found sufficient to
preclude basing the Court's analysis in large part on an
assumption to the contrary. By doing so, the majority
improperly substituted its weighing of the evidence for that
of the trial court, in violation of the proper standard of
review under Barker v. Wingo,407 U.S. 514 (1972),
as explained in my merits dissent. As I concluded in ...