Opinion No. 91-547

Full title: Opinion No. 91-547

Court: Attorney General of Oklahoma — Unpublished Opinion

Date published: Jul 24, 1991

Opinion No. 91-547 (1991) AG (Ops.Okla.Atty.Gen. Jul. 24, 1991)

Opinion

Decided: July 24, 1991

STEVEN SPEARS KERR

THE ATTORNEY GENERAL HAS REQUESTED THAT I RESPOND TO YOUR REQUEST FOR AN OFFICIAL OPINION ASKING, IN EFFECT:

1) HOW DOES A CRIMINAL DEFENDANT IN A MUNICIPAL COURT NOT OF RECORD PROCEEDING APPEAL HIS OR HER CONVICTION WHEN NO RECORD IS KEPT OF THE PROCEEDING?

2) WHAT IS THE EFFECT ON THIS PROCEDURE WHEN A CITY CHARTER REQUIRES HE MUNICIPAL COURT TO KEEP RECORDS OF ALL FINES, COLLECTIONS AND OTHER PROCEEDINGS IN THE MUNICIPAL COURT?

IT APPEARS THAT IT IS NOT NECESSARY TO RESPOND TO YOUR INQUIRY BY THE ISSUANCE OF A FORMAL OPINION BECAUSE A CLEAR READING OF SEVERAL STATUTES AND CONTROLLING CASE LAW DISCLOSES THE FOLLOWING ANSWERS TO YOUR QUESTIONS.

TITLE 11 O.S. 27-129 (1983) STATES THAT AN APPEAL OF A CONVICTION IN A MUNICIPAL COURT NOT OF RECORD IS BROUGHT BEFORE THE DISTRICT COURT OF THE COUNTY IN WHICH THE MUNICIPALITY IS LOCATED. WHEN FILED, THAT APPEAL IS THEN TREATED AS A TRIAL DE NOVO. IN OTHER WORDS, NO RECORD OF THE MUNICIPAL COURT IS REQUIRED SINCE A NEW TRIAL IS HELD.

THE OKLAHOMA COURT OF CRIMINAL APPEALS HAS DEFINED A TRIAL DE NOVO AS A COMPLETELY NEW ACTION WHICH IS HELD ANEW AS IF NO ACTION HAS BEEN INSTITUTED IN THE LOWER COURT. STONE V. MIRACLE, 162 P.2D 534 (OKL. 1945). THIS NEW TRIAL AFFORDS ALL LITIGANTS A COMPLETE REEXAMINATION OF ISSUES, BOTH OF LAW AND OF FACT, WHICH THE LOWER TRIBUNAL WAS AUTHORIZED TO CONSIDER. SHELTON V. LAMBERT, 399 P.2D 467 (OKLA. 1965).

SINCE ALL DEFENDANTS BEFORE COURTS NOT OF RECORD ARE ENTITLED TO APPEAL THEIR CONVICTIONS TO THE DISTRICT COURT FOR TRIALS DE NOVO, THERE IS NO VIOLATION OF ANY DUE PROCESS RIGHTS.

YOUR SECOND QUESTION INVOLVES THE RECORD KEEPING PROCEDURES OF THE MUNICIPAL COURTS NOT OF RECORD AND WHETHER THEY ARE REQUIRED TO TRANSCRIBE PROCEEDINGS INITIATED BEFORE THEM. THERE IS NO REQUIREMENT IN THE STATUTES REGARDING RECORDING AND TRANSCRIBING TRANSCRIPTS IN ANY TYPE OF PROCEEDING BEFORE A MUNICIPAL COURT NOT OF RECORD. FURTHER, SINCE A TRIAL DE NOVO OCCUR SHOULD AN APPEAL BE FILED, THERE IS LITTLE NEED FOR A TRANSCRIPT.

(STEVEN SPEARS KERR)