Swain v. State

Full title: CARL SAMUEL SWAIN, APPELLANT, vs. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Dec 3, 1997

701 So. 2d 675 (Fla. Dist. Ct. App. 1997)

Opinion

Case No. 95-3526

Opinion filed December 3, 1997.

An appeal from the Circuit Court for Dade County, Maynard A. Gross, Judge.

Bennett H. Brummer, Public Defender, and Rosa C. Figarola, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.

Before NESBITT, COPE and FLETCHER, JJ.

PER CURIAM.

Carl Samuel Swain appeals his convictions of burglary with assault, battery, and violation of a restraining order (for protection against domestic violence). We vacate the convictions and remand for a new trial.

Following his convictions below, Swain filed a timely notice of appeal in which he specifically requested the jury voir dire portion of his trial transcript. The transcript received by Swain did not contain the voir dire portion of the proceedings. A hearing revealed that the voir dire portion of the transcript was lost and both parties stipulated that this portion of the transcript could not be reconstructed. Following Rozier v. State, 669 So.2d 353 (Fla. 3d DCA 1996), Swain is entitled to reversal of his convictions and a new trial. The State has conceded error. We hereby order a new trial.

Reversed and remanded.