1. Introduction
In postconviction appeals, the record may be prepared differently depending on whether there was an evidentiary hearing on the postconviction motion. Appeals from orders entered on a postconviction motion after an evidentiary hearing are called "nonsummary postconviction appeals." Fla. R. App. P. 9.141(b)(3). Appeals from orders entered on a postconviction motion without an evidentiary hearing are called "summary postconviction appeals." Fla. R. App. P. 9.141(b)(2).2. Nonsummary Postconviction Appeals
a) Timing
The lower tribunal clerk will prepare the record on appeal and electronically transmit the record on appeal to the appellate court and serve a copy on the parties within 50 days of the date that the notice of appeal was filed. Fla. R. App. P. 9.141(b)(3)(A).b) Costs
As in direct criminal appeals, the clerk’s office automatically sends a copy of the record on appeal to the State and, if the defendant has been declared indigent, to the defendant. If the defendant has not been declared indigent, the clerk will send only a copy of the index to the record on appeal to the defendant. If the appellant has been declared indigent, the state will bear the costs of transcription of the evidentiary hearing. However, if the appellant has not been declared indigent, it will be the appellant’s responsibility to pay the cost of preparing the transcript. Failing to pay the cost of preparing the evidentiary hearing transcript can delay preparation of the record on appeal.c) Directions to the Clerk and Designations to the Court Reporter
If the appellant does not file directions to the lower tribunal clerk identifying the specific filings to be included or excluded from the record on appeal, the lower tribunal clerk’s office will automatically include the postconviction motion, the State’s response, a reply if one was filed, the order on the motion, attachments to any of these documents, and a transcript of the evidentiary hearing. If there was a motion for rehearing, the clerk’s office will include the rehearing motion, the State’s response, any reply, the order on the motion, and attachments to any of these documents. Fla. R. App. P. 9.141(b)(3)(B)(1).In a nonsummary postconviction appeal, the appellant does not have to file a designation to the court reporter. If the appellant does not file a designation, the lower tribunal clerk’s office will tell the court reporter to transcribe the evidentiary hearing. Fla. R. App. P. 9.141(b)(3)(A).
Just as in any appeal, it is the appellant’s responsibility to make sure the record on appeal contains everything the appellate court will need to decide the issues on appeal. If something is missing that was part of the lower tribunal file below, it is the appellant’s responsibility to file a motion to supplement the record as described in section (C)(5) of this chapter.
3. Summary Postconviction Appeals
In a summary postconviction appeal the clerk will include in the record on appeal the postconviction motion, the State’s response, a reply if one was filed, the order on the motion, and attachments to any of these documents. If there was a motion for rehearing, the record on appeal will also include that motion, the State’s response, the reply, the lower tribunal’s order on the motion, and attachments to any of these documents. Fla. R. App. P. 9.141(b)(2)(A).In summary postconviction appeals, the rules do not require the clerk’s office to put new page numbers on the pages of the appellate record or to prepare an index. However, the appellate court may order it to do so. Similarly, the clerk’s office is not required to send a copy of the appellate record or an index to the parties. Fla. R. App. P. 9.141(b)(2)(B). But some appellate courts require the clerk to do so. See e.g., In re: Preparation of Records in Review of Proceedings in Collateral or Post-Conviction Criminal Cases, Fla. Admin. Order 02-2 (Fla. 1st DCA Jan. 18, 2002) (available at http://www.1dca.org/orders/02-2.pdf)
