Opinion
No. 15837.
June 8, 1989.
APPEAL FROM THE CIRCUIT COURT, ST. CLAIR COUNTY, R.T. HUESEMANN, SPECIAL JUDGE.
Gary V. Cover, Clinton, for movant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from the circuit court's denial, after evidentiary hearing, of movant's motion to set aside his felony conviction of stealing property of the value of more than $150, for which crime he received a sentence of 15 years' imprisonment.
Issues raised on appeal are ineffective assistance of trial counsel and improper prosecutorial conduct in connection with a proposed plea bargain agreement. In his brief, movant contends that the testimony of Bates County Sheriff Leonard Hough, who testified at the evidentiary hearing, would corroborate his claims on the issues raised.
Our examination of the trial transcript reveals that it does not include the testimony of Hough. At the conclusion of the testimony of movant's witness Helen Lee, the transcript recites:
"(TRANSCRIBER'S NOTE: This is the conclusion of the first tape. Our office was only provided with one tape. Upon calling St. Clair County, we were advised that the other tape was not available.)"
A losing party is entitled to a full, fair and complete transcript on appeal, Jackson v. State, 514 S.W.2d 532, 533 (Mo. 1974), and where one is not provided, through no fault of an appellant, a meaningful review is impossible. Where, as here, the missing portions of the transcript concern material witness testimony, the appealing party should not be penalized by the state's failure to furnish a proper record.
The motion court's findings of fact, conclusion of law and judgment denying relief filed June 20, 1988, are set aside, and the cause is remanded to the trial court for a new evidentiary hearing, during which a proper record shall be made as is provided by law.
HOLSTEIN, C.J., and CROW, P.J., concur.