State v. BernardState v. Bernard
Warren A. Bernard was convicted on November 9, 1983 of three counts of armed
Unfortunately, a transcript of Bernard‘s trial is not available. From the record, it appears that two different court reporters recorded the testimony. One could not be located while the other disposed of his records over five years old.
Bernard argues that his constitutional right to judicial review (
Appellant relies on State v. Archie, 462 So.2d 248 (La.App. 4 Cir.1984). The defendant in this case, however, timely sought аppellate court review of the trial court‘s denial of a pretrial motion to suppress. When a complete transcriрt couldn‘t be provided, the Fourth Circuit remanded for a new suppression hearing.
Bernard, obviously, did not file a timely appeal. He was over six years late. Court reporters in the 24th Judicial District Court (where Bernard was convicted) are required by
We do not believe appellant should benefit from his inaction from 1983 to 1990, particularly in the absence of any statutory violation regarding the keeping of recоrds and in the total absence of any showing (or even suggestion) of bad faith by either court reporter or the prosecution. We arе unaware of any state or federal statute or jurisprudence from Louisiana or elsewhere indicating that records should be prеserved for six years or longer.
When Bernard‘s request for an out-oftime appeal was granted, it was no doubt assumed that a trial transcript could somehow, belatedly be prepared. This assumption was inadvertent and certainly regrettable. Justice is far better served, сonsidering all facts and circumstances of this case, by the denial of Bernard‘s dilatory and lethargic attempt at judicial review than by the voiding of these serious convictions.
Had there been any reversible district court errors in Bernard‘s trial, or any that could have been resolutely argued on appeal, it is almost inconceivable that he and/or his trial lawyer would have waited so long before seеking redress. No reason is given for the delay except Bernard‘s unsupported statement in his application for post conviction relief filed in district court on February 2, 1990. In that pleading, Bernard says that he “constantly requested” that his counsel file an appeal but that thеse pleas were ignored.
We hold that if a convicted felon waits more than six years before seeking рost conviction relief, he cannot complain if a trial transcript is not obtainable.
This holding is, of course, now subject to the prоvisions of
AFFIRMED
KLIEBERT, Judge, dissenting.
The defendant-appellant was conviсted of three counts of armed robbery and one count of attempted armed robbery as a consequence of which, on November 18, 1983, he was sentenced to fifty years at hard labor. No appellate relief was sought until February 2, 1990 when an out-of-time appеal was sought and granted after a writ application to this Court on July 19, 1990. (See No. 90-KH-183).
In response to the appropriate motion, thе trial court ordered that the record be supplemented with the transcript of the testimony of the witnesses at the trial. It was then learned that the essential elements
The appellant contends that the mandate of
In affirming the trial court‘s denial of relief the majority has held that,
1) As there was no statutory violation of
R.S. 13:967(F) which requires Court reporters in the 24th Judicial District to preserve their rеcords for two years, and
2) As the out-of-time appeal granted by us was based on the mistaken assumption that the records would be available, and
3) That had there been any reversible error in the trial, it is inconceivable that appellant or his attorney would have wаited so long before seeking redress.
The position taken by the majority is unconscionable in concept and would be uneven in aрplication. The provisions of
“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judiciаl review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”
The above provides that its protection may be “intelligently waived.” It does not provide for waiver by inaction, as the majority seems to hold, nor does it provide for a limitation on the length of time in which an aрpeal can be sought governed by statutory provisions relating to court reporters. Indeed, an examination of the statutes relating to court reporters in this circuit and the time for preservation of their records reveals the following variations:
R.S. 13:967(F) —24th Judicial District Court—two years from submission
R.S. 13:969(K) —29th Judicial District Court—one year after judgment becomes final
R.S. 13:982(K) —40th Judicial District Court—one year after judgment becomes final
R.S. 13:975 —23rd Judicial District Court—None
Further,
This Court has granted an appеal which is meaningless without a record and leaves as the appellant‘s only redress the granting of a new trial. It is pertinent to point оut that the holding of the majority in affirming the judgment of the lower court is particularly egregious in that the record as made up and before us nоw reflects that the prosecutor, in closing argument concerning an eighteen year old defendant, remarked that “defendant had a drug problem” and “defendant had two prior convictions,” both possibly improper depending, of course, on the complete transcript.
For the reasons assigned, I respectfully dissent.