164 Ga. App. 627 | Ga. Ct. App. | 1982
On October 6,1976, Swayze Montford and Phillip Hodge, along with one other, were tried for the crime of armed robbery. Montford and Hodge were convicted as charged. The third individual’s involvement ended in a mistrial. Montford and Hodge were each sentenced to serve life imprisonment. The court reporter who took down the transcript, after the trial but before the transcript was prepared, left the employ of the court. As a result the transcript remained inchoate on tape. Though the reporter was asked to prepare a transcript after he left the court’s employ, the reporter declined to do so. Appellants each filed a motion for new trial on October 19, 1976. However, the motion could not be considered because of the lack of a transcript.
Four requests for an extension were filed during 1976 and 1977
We need only address the first mentioned ground on the motion for new trial. In considering this asserted denial of a full and accurate transcript, we observe that the appellee has not filed a responsive brief. The failure of the appellee to file a brief does nothing to the case except to admit the statement of facts by the appellant, which so far as they are supported by the record, this court may accept as being prima facie true. Colson v. State, 138 Ga. App. 366 (1) (226 SE2d 154). We are faced therefore with a transcript on appeal that was delayed from October, 1976 until July, 1982, almost six years, due to the unwillingness or inability of the court reporter to furnish a complete and accurate transcript. Even when ultimately submitted by a new reporter, the transcript did not conform to the order of the trial court, for the transcript does not include the voir dire, opening statements or closing arguments, nor could portions of the trial proceedings be fully reproduced.
Apparently, the trial court concluded that the record and transcript could not be reconstructed or reported verbatim either by the court or counsel, and thus forwarded to this court what was available for review. However, it is not the function of this court to attempt to perfect or interpret a record or transcript of a trial proceedings. See Code Ann. §§ 6-805 (a) and 27-2401. It is
A person convicted has a right of appeal. Inherent therein is the right to a transcript on appeal. See Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891). The transcript is to be true, complete and correct. The evidence is undisputed that the transcript in this case cannot be delivered in accordance with the order of the trial court. In the ordinary case we would simply order a new transcription. That obviously is impossible. Thus there is no recourse under these circumstances but to order the appellants a new trial. Wilson v. State, 246 Ga. 672, 676 (273 SE2d 9); Wade v. State, 231 Ga. 131 (1) (200 SE2d 271). We are satisfied that the instructional error, of which complaint is made, assuming the instruction to be erroneous, will not reoccur upon the new trial.
Judgment reversed.