Opinion
7 Div. 393.
October 19, 1976. Rehearings Denied November 16, December 7, 1976.
Appeal from the Circuit Court, Talladega County, William C. Bibb, J.
Guy Sparks, Anniston, for appellant.
William J. Baxley, Atty. Gen., and Joseph G.L. Marston, III, and William A. Davis, III, Asst. Attys. Gen., for the State.
Robbery; sentence: ten years.
The transcript of the evidence was filed late. In addition there is some question as to the accuracy of the transcript. The Supreme Court has held that the appellant's appeal must be dismissed for failure to timely file a transcript of the evidence unless failure to file said transcript was not the fault of the appellant. Ex parte State; In re: Smith v. State (1976), Ala., 346 So.2d 464. Also see Ex parte State; In re: Pope v. State (1976), Ala., 345 So.2d 1385.
On January 6, 1976, the Circuit Judge of Calhoun County, Honorable William C. Bibb, in extending the time allowed to file a transcript of the evidence made the following finding:
"The Court finds the failure to file is not the fault of any party or any attorney in this cause."
Therefore pursuant to Pope v. State (1975), 58 Ala. App. ___, 345 So.2d 1381, this cause is remanded with directions to the trial court to correct the record so as to include a correct transcript of the evidence. The transcript of the evidence should be filed with the Circuit Clerk below within sixty days from this date, unless that time be extended by the trial court for cause pursuant to statute. A complete record shall be filed with this Court by the Circuit Clerk, upon receipt of the court reporter's transcript as provided by law. (Since this appeal was taken prior to December 1, 1975, the new Alabama Rules of Appellate Procedure do not apply.)
As we pointed out in Pope, supra, either party may file objections to the transcript within ten days after the filing of the transcript with the Circuit Clerk. Title 7, § 827 (1a), Code of Alabama 1940, Recompiled 1958. If a correct transcript cannot be obtained, then the appellant must be allowed to prepare a succinct statement of the evidence in lieu of a transcript, pursuant to Title 7, § 827 (3), Code of Alabama 1940, Recompiled 1958. See International Brotherhood of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971). The parties should also file briefs on the merits.
The appellant is an indigent. Due to the peculiar circumstances which surround the failure of the court reporter to prepare and file a proper transcript of the evidence in this case, we would remand this case with the exact same directions had the appellant been a non-indigent.
REMANDED WITH DIRECTIONS.
All the Judges concur.
ON REHEARING
Appellant contends on rehearing that we should reverse and remand for a new trial. In his brief, he states that: (1) there is a factual and legal difference between this case and Pope, supra; (2) the procedure set out hereinabove for establishing a statement in lieu of a transcript is a civil procedure and was not authorized by legislation for use in a criminal case; and (3) pursuant to facts stated in appellant's brief, it is impossible to get either an accurate transcript or a statement in lieu thereof.
When we first determined that the record on appeal in this case did not contain an accurate transcript of the evidence, we then became legally unable to make a determination of the case on the facts presented. We cannot consider any legal or factual differences between this case and Pope on their merits. For purposes of this opinion, they are treated the same in that an accurate transcript was not furnished to either of the indigent appellants.
Through his brief on rehearing, appellant tells us that it is impossible to obtain an accurate transcript or a statement in lieu thereof. While we have no reason to doubt this, it is not a matter appearing of record. This Court cannot go outside the record. Allegations in appellant's brief reciting matters not disclosed in the record cannot be considered. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).
While we may agree with counsel's contention that Title 7, 827 (3) and International Brotherhood of Teamsters, etc. v. Hatas, supra, refer to civil rather than criminal procedure, nevertheless we were directed by the Alabama Supreme Court to consider that procedure on remandment in the Pope case.
The trial court is the proper forum to determine whether or not the failure to file a transcript was the fault of the appellant. Likewise it is the proper forum for determining whether or not it is possible to provide an accurate transcript or a statement in lieu of a transcript. If appellant can present factual and legal matter to the trial court to support the allegations, as expressed in his brief on rehearing, the trial court should make a finding to that effect. The trial court is authorized to grant a new trial if its findings in this regard are favorable to appellant. Swanson v. State (1976), Ala.Cr.App. ___, 346 So.2d 1162.
OPINION EXTENDED; APPLICATION OVERRULED.
All the Judges concur.