Opinion
3 Div. 9.
April 30, 1957. Rehearing Denied August 13, 1957.
Appeal from the Circuit Court, Montgomery County, Eugene W. Carter, J.
Arthur D. Shores, Peter A. Hall and Orzell Billingsley, Jr., Birmingham, and Fred D. Gray, and Chas. D. Langford, Montgomery, for appellant.
The statute authorizing the appellate court to strike the reporter's transcript of testimony where not filed and presented to the trial judge or clerk within the prescribed time is not mandatory upon the appellate court in criminal cases, but is addressed to the court's sound discretion upon whether consideration of defendant's constitutional rights have been secured to him. Gen.Acts 1951, p. 1527; Gen.Acts 1956, p. 143; Code 1940, Tit. 7, § 827; Patterson v. State, 229 Ala. 270, 156 So. 567; Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Pate v. State, 244 Ala. 396, 14 So.2d 251; Spears v. State, 30 Ala. App. 483, 8 So.2d 589; Jones v. State, 237 Ala. 614, 188 So. 384; Clark v. State, 239 Ala. 10, 193 So. 320; Rutherford v. State, 237 Ala. 613, 188 So. 385. In exercise of its sound discretion the appellate court will refuse to strike the record on appeal and dismiss the appeal on motion, although the record was not filed in the appellate court within the time required by statute and rules of court where the record was filed within the time for appeal, without any injury to appellee, and appellant can show extenuating circumstances. Sup.Ct.Rev. Rules 37, 48; Code, Tit. 7, §§ 770, 827; Jones v. Thomas, 255 Ala. 506, 52 So.2d 393; State v. Barton, 257 Ala. 230, 58 So.2d 450; Snow v. City of Fairfield, 261 Ala. 313, 74 So.2d 485; 4 C.J.S. Appeal and Error § 1089.
John Patterson, Atty. Gen., Bernard F. Sykes and Geo. Young, Asst. Attys. Gen., for State.
Court reporter's transcript of testimony must be filed with clerk of circuit court within 60 days from date appeal was taken or 60 days from ruling on motion for new trial, whichever date is earlier. Gen. Acts 1951, p. 527; Gen.Acts 1956, p. 143; Code 1940, Tit. 7, § 827; Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247; Clark v. State, 38 Ala. App. 305, 82 So.2d 805; Eidson v. State, 38 Ala. App. 321, 82 So.2d 814. Time for filing entire record in appellate court should be calculated as 60 days from actual establishment of transcript of testimony, when validly established in court below, or from date time expired for establishing it in court below; and time cannot be calculated from time transcript is filed late and illegally in court below. Sup.Ct. Rev. Rule 37; Lane v. State, 38 Ala. App. 487, 87 So.2d 668; Clark v. State, 38 Ala. App. 480, 87 So.2d 669; Duke v. State, 264 Ala. 624, 89 So.2d 102. Motion to extend time for filing transcript should have been presented to the trial court. Code 1940, Tit. 7, § 827 (a); Watkins v. Kelley, supra.
M.L. King, Jr., on March 22, 1956, gave notice of appeal from a judgment of guilt and sentence passed upon him that day by the Montgomery Circuit Court.
On September 13, 1956, the Attorney General filed here a motion (1) to strike the transcript of evidence; (2) to strike the transcript of the record; and (3) to dismiss the appeal.
The defendant not having moved for a new trial, Act No. 97, approved February 9, 1956, Acts 1956, 1st Sp.Sess., p. 143, required the court reporter to file the transcript of evidence with the circuit clerk within sixty days after the taking of the appeal, i.e., on or before May 21, 1956. Neither we nor the trial court were asked to extend the time. Therefore, the filing by the reporter with the circuit clerk on July 31, 1956, was too late. Code 1940, Title 7, § 827 (1) et seq.; Clark v. State, Ala.App., 82 So.2d 805.
The filing of the transcript of the record with the clerk of this court on August 10, 1956, without benefit of an order of extension was also too late. Having allowed the sixty days to file the transcript of evidence with the circuit clerk to lapse, the defendant's sixty days under Supreme Court Rule 37, as amended (263 Ala. xxi), Code 1940, Tit. 7 Appendix, began to run March 22, 1956, and expired midnight May 21-22, 1956. Lane v. State, Ala.App., 87 So.2d 668, Duke v. State, 264 Ala. 624, 89 So.2d 102. Code 1940, Title 7, § 769, does not operate here and Supreme Court Rule 48 is without influence. See Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247.
The motion of the Attorney General is granted. Ordered that the record including the transcript of evidence be stricken and the appeal be dismissed.
Motion granted; record stricken; appeal dismissed.
On Rehearing
The writer entertains the view that, where, as here, no motion for a new trial is made, no extension of time is sought from the trial judge, and the transcript of testimony is not forthcoming in the 60 days running from the notice of appeal, the 60 days of Supreme Court Rule 37 for the bringing of the entire record here runs concurrently with the 60 days under Act No. 97, supra.
HARWOOD, P.J., and PRICE, J., consider this conclusion unnecessary for decision because the filing here of the record proper on August 10, 1956, some 141 days after notice of appeal, was too late under any interpretation.
Application Overruled.