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Partlow v. State

Florida Court of Appeals, First District

December 20, 2019

Thomas Partlow, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Bruce Anderson, Judge.

          Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.

         On Motion to Supplement the Record

          PER CURIAM.

         Thomas Partlow moved to supplement the record on appeal with documents not included in the postconviction appeal record. We directed Partlow to address whether the requested supplementation was permitted by the rules of procedure. Partlow responded, requesting the motion to supplement be withdrawn. We grant this motion to withdraw. Appellant's initial brief shall be filed twenty days from the date of this order.

          RAY, C.J., concurs

          Winokur, J., concurring specially.

         While Partlow has asked us to withdraw his motion to supplement the record, it should be noted that he did so because he acknowledged in his response that case law applying the rules of appellate procedure does not permit the requested supplementation. I agree that we should grant the motion to withdraw. However, we requested the additional response because the issue here arises regularly in this Court. Because of Partlow's candid acknowledgment that the rules do not permit the requested supplementation, as well the need for guidance on this issue, I believe we should clarify what an appellate record for a summarily-denied postconviction motion may contain.

         Partlow was convicted of first-degree murder and robbery with a deadly weapon for crimes he committed as a juvenile and was sentenced to mandatory life without parole (Count I) to run consecutively with 45 years (Count II). Based on the Supreme Court's holding that "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment," Miller v. Alabama, 567 U.S. 460, 470 (2012), we reversed the sentence imposed on Count I for resentencing. Partlow v. State, 134 So.3d 1027 (Fla. 1st DCA 2013).

         Partlow filed a "Motion to Correct Sentence on Count II," under Florida Rule of Criminal Procedure 3.850. Partlow argued that a then-recent decision by the Fifth District required resentencing on both Counts I and II. Purdy v. State, 268 So.3d 813 (Fla. 5th DCA 2017). The postconviction court denied the motion without an evidentiary hearing, finding that the supreme court had since quashed the Fifth District's decision. State v. Purdy, 252 So.3d 723, 728 (Fla. 2018); see also Warthen v. State, 265 So.3d 695, 697 (Fla. 4th DCA 2019). Partlow appealed the order denying his motion.

         Partlow filed a motion to supplement the record with an order setting a hearing and appointing counsel and transcripts of three status hearings. The order was filed, and all hearings occurred, before Partlow filed his postconviction motion, but he did not attach these documents to support his claim. On appeal, he asserts that supplementation was needed because "[r]elevant factors include the appointment of counsel, any concessions made by the state regarding that matter, and any resentencing hearings held to date."

         Florida Rule of Appellate Procedure 9.141(b) governs appeals from certain postconviction proceedings and specifies what ...


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