Opinion
No. 74-577
Decided July 2, 1975.
Appeal — Time for transmission of record — Extension of time by Court of Appeals — Failure to file — Court to dismiss appeal or affirm.
1. A Court of Appeals has authority, for good cause shown, to extend the time for transmission of the record after the expiration of the time allowed or fixed. (Paragraph two of the syllabus in Wampler v. Bach, 42 Ohio St.2d 237, approved and followed.)
2. Where an authenticated transcript of proceedings in the trial court is necessary to exemplify the facts which determined the issues presented there, its absence requires a reviewing court to dismiss the appeal, or to affirm the judgment of the court from which the appeal is taken. ( Ford v. Ideal Aluminum, 7 Ohio St.2d 9, and Crow v. Brite Metal Treating, 9 Ohio St.2d 63, approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
There is no transcript of proceedings before this court in this case.
The docket of the Court of Common Pleas, however, indicates that defendant-appellee, Oscar Render, was indicted on October 20, 1972, arraigned on October 20, 1972, and charged with the violation of R.C. 2915.13, promoting a "numbers game." Trial was set for February 13, 1973. On December 19, 1972, defendant filed a motion to suppress evidence illegally seized, based upon an alleged lack of probable cause for the issuance of the search warrant and the seizure of items not designated in the warrant.
The record contains neither a transcript of the suppression hearing nor the search warrant, itself. Similarly, the docket does not indicate the court's judgment on the motion to suppress. Both parties maintain, in their briefs, that the trial court heard evidence on the motion, and subsequently overruled it.
A docket entry further reflects that a motion to strike was also filed at this time. Appellant, in his brief, maintains that the latter motion was filed by the prosecution in response to a request of defense counsel, after voir dire, to change defendant's plea from not guilty to a plea of once in jeopardy. Appellant maintains that the trial court granted the motion to strike, and it is undisputed that the trial court overruled the motion to change defendant's plea, although it is not reflected in the record.
On February 6, 1973, appellant's attorney moved for a continuance, and the Court of Common Pleas continued the case until March 6, 1973, for trial. On March 6, 1973, the jury was impanelled and the taking of testimony began.
The jury subsequently returned a verdict finding the defendant guilty of the charge of promoting policy in violation of R.C. 2915.13, and the Court of Common Pleas entered judgment, sentencing defendant to a term of one-to-ten years in the Ohio State Penitentiary.
The record indicates that, on March 7, 1973, defendant filed a timely notice of appeal. On April 30, 1973, an entry appears extending the time for filing a transcript. On August 1, 1973, the record indicates the filing of a motion to extend the time for filing a transcript and an entry extending the time for filing until August 16, 1973. The record discloses that a transcript of proceedings was subsequently filed on September 26, 1973. Both parties state, in their briefs, that the Court of Appeals dismissed the defendant's appeal.
On November 5, 1973, the defendant filed a motion for leave to appeal. The subject of the second appeal was the same judgment of the Court of Common Pleas appealed from in the first appeal. On December 18, 1973, an entry indicates the filing of a transcript of docket and journal entries. On the same date, the clerk of the Court of Appeals mailed notices of the filing of the record, including transcript of proceedings to the county prosecutor and defense counsel, Thomas A. Conroy, pursuant to App. R. 11(B).
On December 19, 1973, the Court of Appeals issued an entry granting the motion for leave to appeal.
On February 15, 1974, the prosecutor filed a motion to dismiss, based on the fact that no transcript of proceedings had ever been filed in the second appeal, numbered C-73524. On February 19, 1974, the defendant filed a motion in opposition, alternatively designated as a motion for extension of time for transmission of the record. On March 4, 1974, the prosecutor filed an affidavit of the clerk of courts, stating that a full check of the dockets, records and journal entries in case No. C-73524 and all other papers in the case of State v. Render showed no record of proceedings having ever been filed with his office under case No. C-73524.
On April 29, 1974, the Court of Appeals issued an entry overruling the motion to dismiss. On that same date, the court issued an opinion regarding their judgment overruling the motion to dismiss. The opinion states that, in addition to the foregoing facts, an investigation disclosed that the original transcript was found in the case file of the first appeal, which had been dismissed. There was no indication of refiling same.
The court stated that, despite this evidence and the affidavit of the clerk of courts, it felt that the defendant-appellant, therein, had a right to rely upon the mailed notice from the clerk that the record had been filed. The court held that, pursuant to its authority under App. R. 10(D), the transcript of proceedings was accepted as being timely filed.
On that same date, the Court of Appeals issued a judgment and opinion reversing the judgment of conviction of the Court of Common Pleas and remanding the cause.
The court based its decision to reverse on the grounds that the trial court abused its discretion in denying the defendant's motion to change his plea from not guilty to once in jeopardy, and erred in denying defendant's motion to suppress the evidence seized as a result of a search warrant which the Court of Appeals held failed to state probable cause for its issuance.
The cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Leonard Kirschner and Mr. William P. Whalen, for appellant.
Mr. Thomas A. Conroy, for appellee.
The appellant, state of Ohio, raises essentially two issues for this court's consideration.
At the outset, the appellant maintains that a Court of Appeals does not have authority, pursuant to App. R. 10 (D), to extend the time for filing the transcript of proceedings after the time for filing prescribed by the Rules of Appellate Procedure has expired and after the time of any extensions previously granted has expired.
The docket indicates that appellee filed a record in the first appeal, case No. C-73096. The filing was late and the appeal, it is alleged, although it does not appear on the docket, was dismissed. The Court of Appeals, however, allowed appellee's motion for leave to appeal and designated it case No. C-73524. Appellant, herein, does not challenge the allowance of appellee's motion for leave to appeal by the Court of Appeals. The appellee, in the case No. C-73524, the second appeal, failed to file a transcript of proceedings within the 40-day period prescribed by App. R. 10(A). The Court of Appeals granted appellee's alternative motion for an extension of time to file, pursuant to App. R. 10 (D), and overruled appellant's motion to dismiss, accepting the record as having been timely filed.
This court has recently held, in Wampler v. Bach (1975), 42 Ohio St.2d 237, that a Court of Appeals has authority, pursuant to App. R. 10(D), to allow an extension of the time for transmission of the record after the expiration of the time allowed or fixed for good cause shown. It is clear, in the present case, that the Court of Appeals had authority to grant an extension of time for filing the record and the confusion engendered by the clerk's erroneous notice furnishes a basis for the exercise of the Court of Appeals' discretion in allowing the late filing of the transcript.
The major problem in this appeal arises from failure of the appellee, in the Court of Appeals, to ever file a transcript of proceedings. The docket and journal entries of the Court of Appeals clearly show that no transcript of proceedings was ever filed in this case.
A transcript is a copy of the record, or part of it, as it existed in the court below. Unless authorized by statute or rule a substitute cannot be made to take the place of the transcript.
The original papers before this court do not contain a certified transcript of proceedings from the Court of Appeals. That court, however, heard this case on oral argument and rendered a judgment reversing the judgment of the Court of Common Pleas.
The law in Ohio is clear that, where an authenticated transcript of proceedings in a trial court is necessary to exemplify the facts which determined the issues presented there, its absence requires a reviewing court, upon appeal, to dismiss the appeal or affirm the judgment of the court from which the appeal is taken. Ford v. Ideal Aluminum (1966), 7 Ohio St.2d 9; Crow v. Brite Metal Treating (1967), 9 Ohio St.2d 63.
Because the Court of Appeals, absent a transcript of proceedings, reversed the judgment of the trial court, the judgment of reversal can stand only if it was based on errors apparent on the face of the record not requiring an examination of the transcript for determination.
In this regard, the Court of Appeals predicated reversal upon two grounds: (1) That the refusal of the trial court to accept the defendant's change of plea was an abuse of discretion; and (2) that an affidavit of a federal officer upon which probable cause for the issuance of a search warrant was based failed to demonstrate the underlying circumstances necessary to explain the information of an informant.
The first error found by the Court of Appeals was that the trial court abused its discretion in denying defendant's motion for a change of plea from not guilty to former jeopardy on the basis that such plea was not timely filed.
R.C. 2943.03(C) [now superseded by Crim. R. 11(A), (C), (H), 12(A) and 32.1] provided that the defense of a former judgment of conviction must be made by a plea to an indictment or information. The Court of Appeals states that the defendant moved to change his plea at trial after the court's opening remarks. The docket and journal entries of the Court of Common Pleas do not indicate any such motion having been made or overruled. Likewise, the docket and journal entries of the Court of Appeals do not indicate the filing of a transcript of proceedings in the trial court which could demonstrate in the Court of Appeals that such oral motion was made or what disposition of it was made by the trial court. The Court of Appeals had no authenticated record before it on which to base its finding of error.
Similarly, the Court of Appeals' second finding of error, that appellant lacked probable cause for the issuance of a search warrant, is based upon an examination of the warrant, affidavits, and testimony produced at the suppression hearing in the trial court. The docket and journal entries of the Court of Appeals do not demonstrate that any of this evidence and testimony was ever made a part of the record on appeal.
In the absence of any record of proceedings in the trial court, upon which to predicate reversal in the Court of Appeals, the judgment of the Court of Appeals, in so doing, must be reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN, and P. BROWN, JJ., concur.