Pope v. State

345 So. 2d 1390 | Ala. Crim. App. | 1977

Appeal from Calhoun Circuit Court.

On October 19, 1976, 345 So.2d 1388, this Court remanded this cause with directions to the circuit court. On November 16, 1976, on rehearing, we extended the opinion, stating:

"Through his brief on rehearing, appellant contends that it is impossible to obtain an accurate transcript or a statement in lieu thereof. While we have no reason to doubt this, it is not a matter appearing of record and this Court is bound by the record, not the allegations appearing in brief.

"The trial court is the proper forum to determine whether or not it is possible to provide an accurate transcript or a statement in lieu of a transcript. If on remand to the trial court, appellant can support the allegations, as expressed in his brief on rehearing, the trial court should make a finding to that effect. The trial court is authorized to grant a new trial if its findings in this regard are favorable to the appellant." (Citations omitted.)

The State petitioned the Supreme Court for a writ of certiorari. On January 7, 1977, the trial court, acting on our extended opinion, above, granted appellant a new trial. Certification of that fact was filed with this Court and with the Supreme Court on January 12, 1977. The Supreme Court, by order of January 13, 1977, 345 So.2d 1390, dismissed the petition for writ of certiorari as moot. We therefore dismiss the appeal.

APPEAL DISMISSED.

All the Judges concur.