Howland v. State, No. 81-876

No. 81-876 | Fla. Dist. Ct. App. | Mar 10, 1982

ORFINGER, Judge.

Appellant seeks reversal of his conviction for first degree murder and his sentence of life imprisonment. Finding no reversible error, we affirm.

Appellant contends that the trial court erred in failing to grant his motion for a free transcript of the preliminary hearing.¹ He correctly asserts that a transcript of such hearing may not be denied him merely because he is indigent. Roberts v. La Vallee, 389 U.S. 40" court="SCOTUS" date_filed="1967-10-23" href="https://app.midpage.ai/document/roberts-v-lavallee-107527?utm_source=webapp" opinion_id="107527">389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffen v. Illinois, 351 U.S. 12" court="SCOTUS" date_filed="1956-05-28" href="https://app.midpage.ai/document/griffin-v-illinois-105382?utm_source=webapp" opinion_id="105382">351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The record, however, does not reflect that the trial court ever denied his request for such transcript. Appellant’s motion requested a transcript of the grand jury proceedings, as well as the preliminary hearing. In the written order, the trial court specifically withheld ruling on both requests, requesting additional citation of authority from both appellant and the state. The record does not reflect that appellant complied with the court’s request or that he took the steps necessary to secure a ruling on the motion. Thus, no issue has been preserved for appeal. See Hernandez v. State, 323 So. 2d 318" court="Fla. Dist. Ct. App." date_filed="1975-12-09" href="https://app.midpage.ai/document/hernandez-v-state-1669805?utm_source=webapp" opinion_id="1669805">323 So.2d 318 (Fla. 3d DCA 1975).

Thus appellant’s contention that he was denied a free copy of the transcript of the preliminary hearing solely because he was indigent is not supported by the record. The record does show that appellant had been declared indigent for cost purposes, and the court authorized the expenditure of $1,000.00 for expert witnesses and investigative purposes. It would thus appear that a method of procuring the transcript was clearly available. See Britt v. North Carolina, 404 U.S. 226" court="SCOTUS" date_filed="1971-12-13" href="https://app.midpage.ai/document/britt-v-north-carolina-108412?utm_source=webapp" opinion_id="108412">404 U.S. 226, 91 S. Ct. 431" court="SCOTUS" date_filed="1971-01-14" href="https://app.midpage.ai/document/perkins-v-matthews-108227?utm_source=webapp" opinion_id="108227">91 S.Ct. 431, 30 L. Ed. 2d 400" court="SCOTUS" date_filed="1971-12-13" href="https://app.midpage.ai/document/britt-v-north-carolina-108412?utm_source=webapp" opinion_id="108412">30 L.Ed.2d 400 (1971).

Appellant’s remaining points are without merit. The judgment of conviction and sentence are therefore

AFFIRMED.

SHARP and COWART, JJ., concur.

1 . Florida Rule of Criminal Procedure 3.131(b)(4) provides that:

At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim stenographically or by mechanical means, and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to defendant or his counsel.