Legal Question in Appeals and Writs in Florida

Re: petition for certiorari

If the transcript of the proceedings in the lower tribunal is unavailable, the parties may submit a statement of the evidence as a substitute. This method of providing a factual background for the appellate arguments may be employed, only if the parties agreed to the statement of the evidence or if their respective differences as to the material facts have been resolved in the lower tribunal.

Rule 9.200(b)(4) of the Florida Appellate Rules sets forth the procedure for submission of a statement of the evidence in lieu of a transcript. The appellant must initially prepare a statement of the evidence from the best available means, including appellant's own recollection of the evidence. Within 10 days of service of the original statement, Appellee may serve objections or proposed amendments to the statement. Thereafter, the statement of the evidence together with any objections or proposed amendments must be submitted to the lower tribunal for settlement and approval. When these requirements are met, the clerk of the lower tribunal must include the statement of the evidence in the record.

The language of rule 9.200(b)(4) appears to require judicial approval of the stipulated statement in every case whether the parties have agreed to the statement or not. One Florida court held, however, that it is not necessary to obtain approval by the lower tribunal if the parties agreed to a statement of the evidence. In this situation, the statement of the evidence under rule 9.200 (b)(4) serves as a valid substitute for the transcript just as a stipulated statement would serve as a valid substitute for the record as a whole under the provisions of rule 9.200(a)(4).

Settlement and approval of the record by the lower tribunal is unquestionably required if there is a disagreement between the parties as to the material facts. If the judge or judicial officer is able to resolve the factual differences, the resulting statement of the evidence may be used in place of the transcript. In contrast, if the trial judge is unable to resolve the factual differences between the parties, the stipulation prepared by the appellant will be left without a substitute for the record. The trial judge is not required to accept a unilateral statement of the evidence.

However, if a record properly made at the time of the proceeding in the lower tribunal was lost or destroyed prior to the appellate proceeding, then failure to obtain settlement and approval of a statement of the evidence would most likely result in a remand for a new hearing.

If the parties are unable to agree on the material facts and if those differences cannot be resolved in the lower tribunal, the appellate court will have no alternative but to affirm the order under review. The order of the lower tribunal is presumed to be correct and the appellant has the burden of producing a record that shows the existence of reversible error.

Good luck,

Randall Gilbert

Appellate Practice � 13.7 (2006 ed.) by Padovano