rule9.200( B)( 5): theherooFthereCordonaPPeal appellate Practice Section Co-Chairs: DimitriPeteves – Creed & Gowdy, P. A. & AlisonPreston – BrannockBerman & Seider
onceapproved, thestatement willbeincludedintherecord onappealinsubstitutionofthe unavailabletranscripts.
Florida Law Weekly tends to be replete with Per Curiam Affirmances citing Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150( Fla. 1979), which suggests that practitioners are far too familiar with the consequences of unavailable transcripts. When found in this situation, it’ s important to look to Florida Rule of Appellate Procedure 9.200( b)( 5) to save the day.
What is provided in Florida Rule of Appellate Procedure 9.200( b)( 5)?
Short answer: a Statement of Evidence or Proceedings, which can serve as a proper substitute for unavailable transcripts.
Rule 9.200( b)( 5) states,“[ i ] f no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party’ s recollection.” This rule requires that the statement be served on all other parties, who are then given 15 days to raise objections or suggest amendments. Subsequently, the statement( and any objections or amendments) must be filed with the trial court for approval. Once approved, the statement will be included in the record on appeal in substitution of the unavailable transcripts. Notably, if the statement is not provided to all other parties and if it is not approved by the trial court, it“ must” be rejected for failure to comply with the rules. See Waites v. Middleton, 302 So. 3d 1082, 1084( Fla. 1st DCA 2020)( citation omitted).
What is the timeline to prepare a Statement of Evidence or Proceedings?
Short answer: there is no strict deadline, but“ the sooner the better.”
Rule 9.200( b)( 5) does not establish any specific deadline by which the statement must be prepared and filed. But time is of the essence for at least two reasons. First, oftentimes these statements are prepared from
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