1. Filing Directions to the Trial Court Clerk
To designate particular items from the lower tribunal file for the clerk to include in or exclude from the record on appeal, the appellant will need to file a document called "directions to clerk." Fla. R. App. P. 9.900(g). The directions should be filed in the court that heard the case within 10 days of the date that the notice of appeal was filed. Fla. R. App. P. 9.200(a)(2). In the directions the appellant should clearly identify which items the appellant wants to include and which items the appellant wants to exclude, if any, from the record. Rule 9.900(g) contains a sample form to use when filing directions with the lower tribunal clerk. If the appellant files directions with the clerk, the appellee, the other party to the appeal, has 20 days from the notice of appeal to file a similar document directing the clerk to include other documents and exhibits that the appellee wants in the record. Fla. R. App. P. 9.200(a)(2).If the appellant chooses to direct the clerk to exclude items from the record or to include only particular documents instead of sending the whole record to the appellate court, the appellant will also need to file a "statement of judicial acts" in lower tribunal at the same time as the directions to the clerk. Fla. R. App. P. 9.200(a)(2). A statement of judicial acts tells the appellate court which of the lower tribunal’s actions the appellant wants the appellate court to reverse. The statement of judicial acts also allows the appellee to decide whether to add additional portions of the record.
2. Transcripts and Designations to the Court Reporter
When there has been a trial, evidentiary hearing, deposition, or other proceeding in the lower tribunal that is relevant to the order being appealed, the record should include a transcript. A transcript is a written record of a spoken court proceeding. It often contains the most important information for an appeal. Transcripts are prepared by an official court reporter or court transcriptionist, who either attended the proceeding or transcribed the proceeding from a recording.Most criminal proceedings have a court reporter present or are audio recorded for later transcription. However, in civil cases the parties must arrange for a court reporter to be present or for a recording of the proceedings to be made. If they do not, there will not be any transcript available to include in the record on appeal. Once a court proceeding has been transcribed, either party may file it in the court file for inclusion in the record on appeal. In civil cases, the presence of a court reporter or electronic recording device at the court proceeding is not enough. The parties must request that a court reporter create an official transcript of the proceeding and then ensure that it is filed with the lower tribunal clerk before the transcript can be included in the record on appeal.
Within 10 days of filing the notice of appeal the appellant must file a designation with the court reporter or transcriptionist present at or responsible for transcribing the recording of the proceeding clearly identifying which court proceedings need to be transcribed and filed with the lower tribunal clerk. Fla. R. App. P. 9.200(b)(1). The appellee has 20 days from the date the notice of appeal was filed to designate any additional proceedings that need to be transcribed and included in the record. Fla. R. App. P. 9.200(b)(1). The designation should list the dates of all of the days of trial and any hearings that need to be transcribed. In civil cases the designation should also include the names and addresses of the other parties that should be served with a copy of the transcript. If the party filing the designation does not direct the court reporter or transcriptionist to serve a copy of the transcript on all of the parties to the appeal, that party must serve a copy of the transcripts on the other parties within 5 days of receiving the transcripts. Fla. R. App. P. 9.200(b)(3). For a sample form for serving designations on the court reporter or transcriptionist, refer to rule 9.900(h). In criminal cases, service of the transcripts on the parties is a little different. See Fla. R. App. P. 9.140(f)(2). Consult section (E) of this chapter for more information.
The court reporter has 30 days from the date of the designation to prepare the transcript. Fla R. App. P. 9.200(b)(2). After receiving the designation, the court reporter will fill out the "court reporter's acknowledgement" section with the date the designation was received and the estimated date of completion of the listed transcript. Fla. R. App. P. 9.200(b)(3). Within 5 days of receiving the designation, the court reporter will send the completed acknowledgement to the clerk of the appellate court and the parties. If the court reporter cannot prepare the requested transcript within 30 days, the court reporter may ask the appellate court, by way of a motion, for extra time. If the court reporter will need more than 30 days, another option is for the appellant to file a motion for an extension on behalf of the court reporter; such a motion should be filed well before the 30 days is over and should ask the appellate court to extend the time for the court reporter to prepare the transcript and to also “toll” or extend all other deadlines accordingly (that helps avoid a situation where the briefs are due before the record is even complete). If the court reporter and/or appellant asks for that extra time, the appellate court will then either grant or deny the court reporter’s request for extra time and issue an order telling the court reporter and the parties when the transcript is due. See Fla. R. App. P. 9.200(b)(3),(e).
Parties should remember that when they want to include transcripts of depositions or other proceedings that did not include the lower tribunal judge as a participant, the transcripts must have been before the lower tribunal, either introduced into evidence or attached to a motion, pleading, or other filing. As with other record documents, the appellate court may only consider transcripts that were considered by the lower tribunal in coming to its decision. See, e.g., Parker v. Parker, 109 So. 2d 893, 894 (Fla. 2d DCA 1959) ("A deposition is not a part of evidence before the court unless made so pursuant to the rules of evidence and the rules of court.").
3. Record Stipulations and Reconstruction
Rarely, instead of preparing a record on appeal, both sides work together to prepare what is called a "stipulated statement" for the appellate court. Fla. R. App. P. 9.200(a)(3). This may save costs when the appellant must pay for the appellate record and is a separate and distinct procedure than reconstructing the transcripts of a hearing when there was no court reporter or electronic recording available at the court proceeding. A stipulated statement must be approved by both parties. It shows how the case proceeded in the lower tribunal, what the lower tribunal decided, includes copies of record documents as is necessary to review the decision on appeal, and must be filed with the lower tribunal clerk for transmission to the appellate court. If the parties intend to rely on a stipulated statement, they should advise the lower tribunal clerk as soon as possible. Fla. R. App. P. 9.200(a)(3).If there was no court reporter present at the court proceeding or a transcript is otherwise unavailable, the parties may agree on a prepared statement of the evidence or the proceedings. The party seeking to recreate the record of the proceeding should prepare the statement from the "best available means," which includes the memories of the parties. They should then serve the statement on the opposing party, who has 10 days from the date of service to object or propose amendments to the statement. After that, the statement of evidence and any objections or proposed amendments are filed with the lower tribunal. The lower tribunal will settle any disagreements and give final approval to the statement of evidence. The court-approved statement can then become part of the appellate record. Fla. R. App. P. 9.200(b)(4).
4. Cross-Appeal
Sometimes in an appeal, the appellee also files a cross-appeal, which is explained in more detail in Chapters 8 and 9. The appellee then becomes the appellee/cross-appellant, and the appellant becomes the appellant/cross-appellee. If there is a cross-appeal, the cross-appellant has 20 days from the date the notice of appeal was filed to file a designation directing the clerk of the lower tribunal to add documents, exhibits, or transcripts to the record on appeal. If the cross appellant designates less than the entire record, then the cross-appellant must serve a statement of judicial acts to be reviewed with the cross-appellant’s designation. The cross-appellee then has 10 days after service of the cross-appellant's designation and statement of judicial acts to be reviewed, to designate any other items for inclusion in the record on appeal. When there is a cross-appeal, the total time for the clerk of the lower tribunal to prepare and transmit the record is extended by 10 days. Fla. R. App. 9.200(c).5. Correction and Supplementation of the Appellate Record
The appellant is responsible for checking the record on appeal to make sure that everything the appellate court needs to make a decision on the issues raised is included. If one of the parties believes that the record contains an error or omission (e.g., a mislabeled document, a mistake in record page numbers, or a document filed with the lower tribunal but missing from the record on appeal), the appellant or appellee may correct it: (1) by agreeing with opposing counsel to stipulate to the correction, (2) by filing a motion to correct the mistake with the lower tribunal clerk before the clerk sends the record to the appellate court, or (3) if the lower tribunal clerk’s office has already sent the record to the appellate court, by filing a motion to supplement or correct the record on appeal in the appellate court asking the appellate court to make or allow the correction or supplementation. Fla. R. App. P. 9.200(f)(1).If a party believes that the lower tribunal clerk has left a necessary item out of the record on appeal, the party cannot just file the document with the appellate court clerk or attach it to his or her brief. If the lower tribunal clerk has not yet filed the record in the appellate court, the party may arrange for correction or supplementation of the record with the lower tribunal clerk. This is typically done by filing a designation identifying the documents to be supplemented. However, if the lower tribunal clerk has already transferred the record to the appellate court, the party must instead file a "motion to supplement the record" in the appellate court. This motion should identify the missing filing by date and title and should explain why it needs to be in the record.
In a civil case, if the appellate court believes that the record is incomplete or wants a particular document, transcript, or exhibit that neither party designated with the lower tribunal clerk, the appellate court will generally order the appellant to make arrangements with the lower tribunal clerk to supplement the record. In a criminal case, the appellate court may order the lower tribunal clerk to supplement the particular document, transcript, or exhibit directly. Pursuant to rule 9.200(f)(2), the appellate court will give the parties a chance to supplement the record rather than decide the appeal on an incomplete record.
