DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY MAURICE BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-396
[January 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case No. 18001695CF10A.
Carey Haughwout, Public Defender, and Breanna Atwood, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
This appeal is an example of what can go wrong, went wrong. The
defendant appeals an order denying his motion to suppress after entering
a plea, reserving his right to do so. He argues the trial court erred in
denying the motion, and that the loss of the transcript and inability to
reconstruct the record warrants a new trial. 1 We agree with the defendant
that the lack of the hearing transcript prevents us from addressing the
merits of the appeal and warrants a reversal.
Law enforcement stopped the defendant for an unassigned temporary
tag on his vehicle. The defendant provided a copy of a registration that
did not match the expiration on the temporary tag. The defendant told the
officer that he owned the vehicle for about three months and continued to
1
The hearing transcript is unavailable because the court reporter’s car was stolen
with the hearing notes inside. The facts are therefore drawn from the written
documents in the record, including the trial court’s order on the motion to
suppress.
get temporary tags. The defendant was taken out of the car and informed
that he was going to be arrested for failing to register his motor vehicle.
The officer searched the defendant’s vehicle incident to arrest and
found marijuana and crack cocaine. After the officer read the defendant
his Miranda rights, the defendant admitted to placing the tag on the motor
vehicle, failing to register the vehicle, and owning the marijuana and crack
cocaine. The State charged the defendant with possession of marijuana,
cocaine, and paraphernalia, and attaching an unassigned tag to his car.
The State did not charge the defendant with misusing a temporary tag to
avoid registering his vehicle.
The defendant moved to suppress his statements, the marijuana,
cocaine, and paraphernalia. In his motion, the defendant argued the basis
for the stop and arrest was unlawful because no law enforcement officer
saw him attach the unassigned tag to his car. He argued his statements
and the evidence obtained following the stop and arrest should be
suppressed because they were obtained without a warrant. The State did
not respond to the motion.
The trial court held an evidentiary hearing. The trial court denied the
motion to suppress. The trial court’s written order stated:
At the suppression hearing, [the officer] testified that he
stopped the [d]efendant on February 9, 2018, for an
unassigned tag on his vehicle. [The officer] asked the
[d]efendant for his license and registration, and then
proceeded to verify that information. [The officer] returned to
speak with the [d]efendant and asked him about the altered
registration. The [d]efendant told [the officer] he has a
temporary tag because he recently purchased the vehicle and
he continuously obtains temporary tags. [The officer] testified
that he notified the [d]efendant that he was going to be
arrested for failing to register his motor vehicle and conducted
an inventory search according to the department’s standard
inventory procedure before eventually having the vehicle
towed. The inventory search uncovered a small clear plastic
bag with cannabis on the driver side door handle inside of an
opened cigarette box. [The officer] also found two small white
rocks that he identified as crack cocaine. After reading the
[d]efendant his Miranda rights, the [d]efendant acknowledged
that he placed the tag on the motor vehicle.
....
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This [c]ourt finds the testimony of [the officer] to be credible.
This [c]ourt also finds the [d]efendant’s traffic stop and arrest
were lawful because [the officer] observed the altered tag prior
to the traffic stop and, post-Miranda, the [d]efendant admitted
that he had placed the tag on the motor vehicle. Additionally,
the inventory search of the [d]efendant’s vehicle was lawful
because [the officer] adhered to reasonable standardized
procedures and there was no showing that he acted in bad
faith or conducted the inventory search for the sole purpose
of investigation. Therefore, the evidence obtained as a result
of the traffic stop, arrest, and inventory search are admissible.
Following the denial of his motion to suppress, the defendant entered
a negotiated no contest plea, and was adjudicated guilty on all charges
and sentenced to concurrent 150 days in jail on counts one and two and
60 days on count three. The defendant then appealed the order denying
his motion to suppress.
While the appeal was pending, the defendant moved to relinquish
jurisdiction to reconstruct the record because of the missing transcript.
Following the reconstruction hearing, the trial court entered a written
order memorializing that both parties agreed: 1) the transcript of the
hearing had been irretrievably lost; 2) the record cannot be reconstructed;
3) the testimony and objections presented at the hearing contained
evidentiary issues the defendant preserved and would have served as
legitimate grounds for appeal; and 4) the defendant is prejudiced in his
appeal because the transcript is necessary for a complete and full review
of this case.
In the defendant’s status report upon relinquishment, he requests us
to reverse and remand the case for a new trial because of the missing
transcript and the inability to reconstruct the record. The State responded
that a new trial was not required because the issue was purely legal. The
State argued it was not bound by its concession at the reconstruction
hearing that the lack of transcript prejudiced the defendant.
The defendant now argues reversal is required because: 1) there is no
transcript of the suppression hearing and the State conceded the
defendant was prejudiced; and 2) the officer did not observe the defendant
attach the unassigned tag to his car, which is a misdemeanor. Thus, the
arrest without a warrant was unlawful. The State responds: 1) the issue
on appeal is purely legal and does not require a transcript of the
suppression hearing; and 2) post-Miranda, the defendant conceded he
attached the unassigned tag to his car.
3
To be entitled to relief, a defendant must “demonstrate that there is a
basis for a claim that the missing transcript would reflect matters which
prejudice the defendant.” Terry v. State, 263 So. 3d 799, 805 (Fla. 4th
DCA 2019) (quoting Jones v. State, 923 So. 2d 486, 489 (Fla. 2006)).
Correspondingly, a transcript is unnecessary where a trial court’s
suppression order recites all the facts necessary to determine the issues
on appeal as a matter of law. See Armstrong v. State, 862 So. 2d 705, 721
(Fla. 2003). “When transcripts are not available, ‘[t]he question to be asked
is whether the portions are necessary for a complete review.’” Terry, 263
So. 3d at 804 (quoting Velez v. State, 645 So. 2d 42, 44 (Fla. 4th DCA
1994)). We conclude that the missing transcript is necessary for a
complete review here.
If the initial stop and arrest was solely for an unassigned tag, our
precedent would require a reversal. See Phillips v. State, 531 So. 2d 1044
(Fla. 4th DCA 1988). “Since [a] violation of . . . section 320.261 is only a
misdemeanor, a police officer may arrest without a warrant only if the
person has committed the offense in the presence of the officer.” Id. at
1045.
The State concedes the officer did not witness the defendant attaching
an unassigned tag to his license plate. But, the State argues the arrest
was nonetheless constitutional because: 1) the defendant told the officer
post-Miranda that he attached an unassigned tag to his vehicle; and 2) the
defendant was validly arrested on the independent ground of misuse of a
tag to avoid registration of his vehicle.
Here, the question of whether the defendant’s arrest for attaching an
unassigned tag was unlawful because the officer did not see him commit
the misdemeanor cannot be answered without knowing other facts that we
cannot ascertain without the transcript. The probable cause affidavit
indicates the officer arrested the defendant for both attaching an
unassigned tag and for misusing the tag to avoid registering his car. The
probable cause affidavit also indicates that the registration handed to the
officer had been altered. The court’s order indicates that the officer
testified that he told the defendant he was stopped for an unassigned tag,
but was being arrested for failing to register his motor vehicle.
The order further states the court found the officer’s testimony credible
that the “stop and arrest were lawful because [the officer] observed the
altered tag prior to the traffic stop and, post-Miranda, the [d]efendant
admitted that he had placed the tag on the motor vehicle.” The order talks
about an altered tag, but that is not what the defendant was stopped,
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arrested, or charged with. The order does not say when the officer learned
the tag was unassigned, before or after the stop.
Unfortunately, without the transcript of the officer’s testimony, we
cannot discern the nuances and sequence of what took place. We do not
know whether the initial arrest was for the unassigned tag, an altered tag
or registration, or for misuse of the tag. Cf. Kirby v. State, 217 So. 2d 619,
621 (Fla. 4th DCA 1969) (finding that because the offense requires “the
actual operation of the vehicle upon the public streets or highways,” it “is
a continuing one. . . .”). And while the probable cause affidavit indicates
the defendant was charged with attaching an unassigned tag and using
the tag to avoid registering the vehicle, the State ultimately charged him
with only attaching an unassigned tag.
We also do not know the sequence of events leading up to the
defendant’s admissions to the officer. The court’s order does not say
whether the admissions were made before or after the arrest. Cf. Brown
v. State, 91 So. 2d 175, 177 (Fla. 1956) (“[W]hen appellant voluntarily
admitted that his ranch wagon was stocked with moonshine,” prior to his
arrest, “such admission was tantamount to the commission of the offense
of possessing illicit liquor in the presence of the officer.”). We simply
cannot extract those facts from the paper record, nor can we decipher what
was presented and ruled on at the motion to suppress.
While the trial court’s order attempts to summarize the suppression
hearing, it was never meant to be the entire record. The omissions and
inconsistencies within the available record prevent us from analyzing the
defendant’s claim that his arrest was lawful. That analysis is crucial to
determining if the trial court’s decision on the motion to suppress was
correct. For these reasons, we reverse and remand the case to the trial
court.
Reversed and remanded for further proceedings consistent with this
opinion.
LEVINE, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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