Opinion
26211.
SUBMITTED DECEMBER 14, 1970.
DECIDED JANUARY 8, 1971. REHEARING DENIED FEBRUARY 2, 1971.
Appellate procedure. Turner Superior Court. Before Judge Gray.
Howard Moore, Jr., Peter E. Rindskopf, for appellant.
W. J. Forehand, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.
This appeal is from the denial of appellant's motion for a change of venue on the issue of penalty in a conviction of rape. For former appearance, see Massey v. State, 224 Ga. 721 ( 164 S.E.2d 786) cert. den. 395 U.S. 912.
The appellee has moved to dismiss the appeal upon two grounds, asserting in essence, (1) that there is no appealable judgment and (2) that the transcript of evidence was not filed in the time allowed by law.
Assuming arguendo that there is an appealable judgment as contended by the appellant, the appeal must be dismissed.
The Appellate Practice Act (Ga. L. 1965, pp. 18, 26; Code Ann. § 6-806) requires that the transcript of evidence be filed within 30 days of the notice of appeal. Here the notice of appeal was filed on July 20, 1970, and the transcript of evidence was not filed until October 1, 1970, 72 days later. The record shows no grant of extension of time for filing the transcript.
Under the foregoing circumstances the appeal must be regarded as stale and subject to dismissal pursuant to the responsibility of this court under the Georgia Constitution (Art. VI, Sec. II, Par. V; Code Ann. § 2-3705). The motion to dismiss is therefore granted. Fahrig v. Garrett, 224 Ga. 817 ( 165 S.E.2d 126); Addis v. First Kingston Corp., 225 Ga. 231 ( 167 S.E.2d 656); Stevens v. Clayton County, 226 Ga. 528 ( 175 S.E.2d 831); Fowler v. State, 226 Ga. 646 ( 177 S.E.2d 47).
Appeal dismissed. All the Justices concur.