Scala and Weitz v. State
213 So. 3d 1085
Fla. Dist. Ct. App.2017Background
- Defendants Daniel Scala and Alan Weitz were tried in 2011 for first-degree grand theft following 2005 prosecutions; they were convicted and sentenced.
- The appellate record (trial transcripts) contained pervasive, substantial errors, omissions, and unintelligible passages across multiple portions of the proceedings.
- The appeal was delayed over four years while the parties and court attempted to reconstruct the record; attempts failed and the trial court found reliable reconstruction impossible.
- Appellants argued the defective transcript prejudiced their ability to obtain meaningful appellate review and sought reversal and a new trial.
- The court concluded appellants met their burden to show the record defects prejudiced their claims and reversed and remanded for a new trial.
- Because the case was remanded, the court also addressed several instances of prosecutorial misconduct in closing argument (attacks on defense counsel, inflammatory comparisons) to guide conduct at retrial; the State’s cross‑appeal (downward departure sentence for Weitz) was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of trial transcript / entitlement to new trial | Transcripts are so defective that appellants cannot obtain meaningful appellate review; defects prejudiced their claims | State argued record sufficed or could be reconstructed; reconstruction efforts ongoing | Court: Transcript defects pervasive and prejudicial; reverse and remand for new trial |
| Prosecutorial misconduct in closing argument (attacks on defense counsel) | Prosecutor denigrated defense (implying bad faith, said defense was "blowing smoke," compared defendants to bank robbers); defense objected | State argued remarks were invited or fair reply to defense calling prosecutor a “persecutor” | Court: Remarks improper; even if invited, prosecutor should have objected rather than respond improperly; noted such comments should not recur at retrial |
| Harmless‑error burden on improper argument | Defense preserved objection at trial | State must show no reasonable possibility the improper comment contributed to verdict | Court noted standard (DiGuilio) but did not reach harmless‑error analysis due to reversal on transcript grounds |
| Cross‑appeal re: downward departure sentence for Weitz | State sought review of downward departure | Appellants’ reversal moots sentencing issue | Cross‑appeal dismissed as moot |
Key Cases Cited
- Jones v. State, 923 So. 2d 486 (Fla. 2006) (defendant must show missing or inaccurate transcript portions would prejudice the defendant to obtain a new trial)
- Delap v. State, 350 So. 2d 462 (Fla. 1977) (new trial where record defects prevent meaningful review)
- DiGuilio v. State, 491 So. 2d 1129 (Fla. 1986) (harmless error standard places burden on State to show error did not contribute to verdict)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor’s duty to seek justice and refrain from improper methods)
- Bertolotti v. State, 476 So. 2d 130 (Fla. 1985) (closing argument must not inflame jurors; it should be confined to evidence and reasonable inferences)
- Murphy v. State, 789 So. 2d 1235 (Fla. 3d DCA 2001) (remedy where record defects prevent appellate review)