ANTHONY MAURICE BROWN v. STATE OF FLORIDA

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.

....

2

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,

4

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.

5