Smith v. StateSmith v. State
Rehearing
ON REHEARING
Appellant contends on rehearing that we should reverse and remand for a new trial. In his brief, he states that: (1) there is a factual and legal difference between this
When we first determined that the record on appeal in this case did not contain an accurate transcript of the evidence, we then became legally unable to make a determination of the case on the facts presented. We cannot consider any legal or factual differences between this case and Pope on their merits. For purposes of this opinion, they are treated the same in that an accurate transcript was not furnished to either of the indigent appellants.
Through his brief on rehearing, appellant tells us 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. This Court cannot go outside the record. Allegations in appellant’s brief reciting matters not disclosed in the record cannot be considered. Edwards v. State,
While we may agree with counsel’s contention that Title 7, 827(3) and International Brotherhood of Teamsters, etc. v. Hatas, supra, refer to civil rather than criminal procedure, nevertheless we were directed by the Alabama Supreme Court to consider that procedure on remandment in the Pope ease.
The trial court is the proper forum to determine whether or not the failure to file a transcript was the fault of the appellant. Likewise it is the proper forum for determining whether or not it is possible to provide an accurate transcript or á statement in lieu of a transcript. If appellant can present factual and legal matter to the trial court to 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 appellant. Swanson v. State (1976), Ala.Cr.App.-,
OPINION EXTENDED; APPLICATION OVERRULED.
All the Judges concur.
Lead Opinion
Robbery; sentence: ten years.
The transcript of the evidence was filed late. In addition there is some question as to the accuracy of the transcript. The Supreme Court has held that the appellant’s appeal must be dismissed for failure to timely file a transcript of the evidence unless failure to file said transcript was not the fault of the appellant. Ex parte State; In re: Smith v. State (1976), Ala.,
On January 6, 1976, the Circuit Judge of Calhoun County, Honorable William C. Bibb, in extending the time allowed to file a transcript of the evidence made the following finding:
“The Court finds the failure to file is not the fault of any party or any attorney in this cause.”
Therefore pursuant to Pope v. State (1975), 58 Ala.App.-,
As we pointed out in Pope, supra, either party may file objections to the transcript within ten days after the filing of the transcript with the Circuit Clerk. Title 7, § 827(la), Code of Alabama 1940, Recompiled 1958. If a correct transcript cannot be obtained, then the appellant must be allowed to prepare a succinct statement of the evidence in lieu of a transcript, pursuant to Title 7, § 827(3), Code of Alabama 1940, Recompiled 1958. See International Brotherhood of Teamsters, etc. v. Hatas,
The appellant is an indigent. Due to the peculiar circumstances which surround the failure of the court reporter to prepare and file a proper transcript of the evidence in this case, we would remand this case with the exact same directions had the appellant been a non-indigent.
REMANDED WITH DIRECTIONS.