Background
Derrick Wells appealed a supplemental judgment from the Alachua County Circuit Court that modified his timesharing schedule and parental responsibility. His appellate arguments all depended on the evidence presented at trial, but no trial transcript was included in the appellate record. The First DCA issued an order under Florida Rule of Appellate Procedure 9.200(f)(2) giving Wells ten days to provide the missing transcript, warning that failure to do so could result in affirmance under Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
Wells conceded no transcript existed and responded by moving for a 45-day extension to instead prepare a “statement of the evidence or proceedings” under rule 9.200(b)(5) — a procedure allowing parties to reconstruct the record from memory or other available means when no official transcript was made. The trial court had transmitted the record and briefing had already been completed by the time Wells filed this motion on May 28, 2026.
Critically, Wells had been aware of the missing transcript since at least November 10, 2025, when he alerted the court to the deficiency in a filing. He nonetheless filed his initial brief on February 17, 2026 without mentioning the transcript and took no steps to prepare a statement of the evidence during the intervening months.
The Court’s Holding
The First DCA denied Wells’s motion for an extension and affirmed the modified timesharing judgment under Applegate. Writing for a unanimous panel, Judge Treadwell explained that rule 9.200(f)(2) — the “incomplete record” provision — only requires the court to give an appellant an opportunity to supplement the record with materials that were omitted from an otherwise existing record. It does not entitle an appellant to create a substitute for a transcript that was never made. Rule 9.200(b)(5), which permits preparation of a statement of the evidence, is a separate vehicle that carries its own implicit timing requirements.
The court acknowledged a district split on whether rule 9.200(b)(5) imposes strict time limits: the Third and Fifth Districts have held the statement must be prepared while the clerk is assembling the record, while the Fourth District permits record reconstruction even after transmittal. The First DCA declined to adopt a hard deadline but clarified that its past willingness to relinquish jurisdiction and allow late statements was discretionary, not obligatory — and that discretion could be denied where the appellant had notice of the deficiency and sat on his rights.
Here, Wells knew of the missing transcript more than six months before his motion, filed a complete initial brief without addressing it, and waited until facing imminent affirmance to act. The court held that such delay — particularly in a custody case subject to expedited review — constituted a waiver of the opportunity to supplement and was wholly inconsistent with the interests of the children involved.
Key Takeaways
- Rule 9.200(f)(2)’s mandate to give appellants an opportunity to cure an incomplete record applies only to materials omitted from a transmitted record, not to transcripts that were never made in the first place.
- The First DCA has no strict time limit for preparing a rule 9.200(b)(5) statement of the evidence, but the court’s discretion to allow late reconstruction is not unlimited — an appellant who has notice of a record deficiency and does nothing may waive that opportunity.
- In custody and timesharing cases, delay in reconstructing a missing record is particularly disfavored given the First DCA’s established policy of expedited review in matters affecting children.
- An appellant challenging a trial court’s factual findings without a transcript or adequate substitute faces near-certain affirmance under Applegate, which requires the appellate court to presume the missing record supports the judgment below.
Why It Matters
This decision provides a useful First DCA roadmap for practitioners navigating missing-transcript problems on appeal. It draws a clear line between the rule 9.200(f)(2) obligation (curing an incomplete record) and the rule 9.200(b)(5) option (reconstructing a nonexistent one), confirming that courts are not required to offer the latter remedy under the former provision. Family law attorneys in particular should note that the court will weigh the appellant’s diligence — or lack of it — when deciding whether to allow late record reconstruction.
More broadly, the opinion underscores the practical stakes of the Applegate doctrine: when an appellant challenges discretionary rulings that turn on evidence and no record exists, the appeal is effectively lost before briefing begins. Counsel — and pro se litigants — must act promptly to either secure a transcript or initiate the reconstruction process under rule 9.200(b)(5) at the earliest sign that an official transcript will be unavailable.