Wesson v. StateWesson v. State
The appellant, Curtis Wayne Wesson, was indicted for the offense of rape in the first degree. On September 19, 1989, the appellant pleaded guilty to the offense of attempted rape in the first degree and he was sentenced to 20 years’ imprisonment. On September 29, 1989, the appellant filed a motion to withdraw his guilty plea, alleging, among other things, that there was no factual basis for his plea, that his attorney failed to investigate the case adequately, and that he was coerced into pleading guilty. That motion was denied on October 2, 1989. On October 4, 1989, the appellant filed a motion for new trial. A hearing was held on that motion and it was denied on October 19, 1989.
The appellant filed notice of appeal on October 20, 1989. The record on appeal was not completed and filed with this court until February 25, 1991. The record on appeal includes a transcript of the hearing on the motion for new trial, but it does not include a transcript of the hearing at which the appellant pleaded guilty. On March 12, 1991, the appellant filed a motion to supplement the record under
“After a diligent and thorough search and investigation by the attorney for the defendant, James T. Smith, and the staff of this Court, this Court is unable to determine or locate the court reporter who transcribed the guilty plea of September 19, 1989. The official court reporter of this court was absent on the subject date and inquiries to other potential court reporters, the presiding judge‘s office, and the attorneys and court officers involved have failed to identify the court reporter involved.”
It is obvious from the trial court‘s order that the transcript of the guilty plea hearing cannot be prepared. Thus, this court has two options. One option we must consider is “the feasibility of preparing a
”Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served within 49 days (seven weeks) after notice of appeal on the appellee, who may serve objections or propose amendments thereto within seven days (one week) after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be filed with and included by the clerk of the trial court in the record on appeal.”
”Agreed statement as the record on appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the appellate court to which such appeal is taken as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by
Rule 11 . Copies of the agreed statement may be filed as the appendix required byRule 30 .”
An examination of the above rules and the circumstances of this case convinces this court that the preparation of a statement under
Therefore, we conclude that the best remedy in the instant case is to reverse the judgment and remand this cause to the circuit court with directions that the appellant be allowed to withdraw his guilty plea and be granted a jury trial, if he so desires. See Steen.
REVERSED AND REMANDED.
All the Judges concur.
TAYLOR, J., concurs in result only, with opinion.
While this case should indeed be remanded, the majority‘s conclusion that