Opinion
Misc. No. 1754.
December 12, 1984.
Appeal from Circuit Court of Carroll County, First Judicial District.
Tom P. Calhoun, III, Greenwood, for appellant.
No briefs for appellee.
En Banc.
Sharon Wilson has been convicted in the Circuit Court of Carroll County, First Judicial District, of the crime of embezzlement and has been sentenced to three years in the custody of Mississippi Department of Corrections. On June 26, 1984, she perfected her appeal to this Court. See Rule 48, Miss.Sup.Ct.R.
The matter is here today on Wilson's motion for an enlargement of time within which to review and examine of the court reporter's notes for proposed corrections and suggestions. The motion was denied by the Circuit Judge on grounds that the Circuit Court had lost jurisdiction of the matter. Appellant Wilson applies here for the same relief she had sought and was denied in the court below.
We are of the opinion that the question presented is one within the concurrent jurisdiction of this Court and of the Circuit Court. Thus, the Circuit Court had the authority to entertain Wilson's motion.
By way of analogy, this Court has recognized its authority over trial court reporters respecting matters relating to the preparation and filing of the trial transcript. Brown v. City of Water Valley, 319 So.2d 649, 651 (Miss. 1975). We have also recognized the authority of the trial court to grant the court reporter an extension of time to complete the transcript after the appeal has been perfected. Haralson v. State, 308 So.2d 222, 223 (Miss. 1975); State v. Autry, 236 Miss. 316, 320, 110 So.2d 377, 378 (1959). Such motions are no doubt heard under the authority of Miss. Code Ann. § 9-13-37 (1972).
The instant motion is made on the authority of Section 9-13-35. That statute provides that upon completion of the transcript the court reporter shall file same with the clerk of the court where the case was tried with each party having a limited opportunity for study of the transcript for the purpose of examination and correction. The statute expressly provides that, if corrections or suggestions as to alterations are made by either party, those shall be presented "to the trial judge". By virtue of this statutory empowering law, the trial judge still has jurisdiction regarding matters touching the preparation of the transcript and the record for appeal.
Notice of appeal has been filed on June 26, 1984, and jurisdiction of this case is now vested in this Court. This Court's jurisdiction is concurrent, however, not exclusive, with respect to subject matter of the instant motion. The Circuit Court has, concurrent with the jurisdiction of this Court, full authority to entertain any and all matters relating to the preparation, correction and perfection of the transcript and record for this appeal, including matters relating to the time within which the various duties must be performed.
In cases such as this where, after an appeal has been perfected, one party or the other seeks an extension of time for the purpose of examination and study of the transcript or record, the motion should in the first instance be filed with the clerk of the court where the trial was had. Such motion is necessarily addressed to the sound discretion of the trial judge. The motion should be granted only where reasonable grounds are advanced in support thereof. If the motion should be denied by the trial judge, the moving party may then apply to this Court for relief, for, as indicated above, the jurisdiction with respect to these matters is concurrent.
In the exercise of their discretion with respect to these matters, we are confident that the trial judges will keep well in mind the problem of overall delay in the appellate process becoming so critical today for the courts and counsel, the litigants and the public.
In the case at bar, the trial judge denied the motion because he was of the opinion that he had no jurisdiction to entertain it. This was error. In order to facilitate the matter and avoid unnecessary expenditures of time and motion, and because reasonable cause has been stated for the granting of the motion, we provide here that the Appellant, Sharon Wilson, shall have through and including December 21, 1984, within which to complete her review and examination of the court reporter's notes.
MOTION FOR TIME EXTENSION TO REVIEW AND EXAMINE COURT REPORTER'S NOTES GRANTED.
ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.
WALKER, P.J., and BOWLING, J., dissent.
PATTERSON, C.J., not participating.
The majority opinion will do no more than add confusion to the law, bring dismay to the lawyers and frustration to the judges.
Therefore, I dissent from the holding of the majority that Mississippi Code Annotated section 9-13-35 (1972) gives the circuit court the authority to grant an enlargement of time to the parties on an appeal for them to review and examine the court reporter's notes for proposed corrections and suggestions.
Section 9-13-35 (1972) provides as follows:
When the notes shall be transcribed, the court reporter shall mail or deliver personally, to each attorney or firm, shown by the record to be interested in the case, written notice that the notes have been forwarded or delivered to the clerk of the court, and shall append to the copy of his notes his certificate of the fact that such notice has been so mailed or delivered, giving the names and addresses of the attorneys or firms so notified. It shall be the duty of the court reporter upon the completion of the transcript of his notes to deliver in person or forward the transcribed notes by registered mail or express, to the clerk of the court where the cause was tried. For ten days after the date of mailing of the notice by the court reporter, the appellant's counsel shall have the use of the notes for the purpose of examination and correction, at the expiration of which time the appellant's counsel shall deliver or mail the notes to one firm or attorney representing the appellee, appending to the notes or endorsing thereon a certificate showing the date when the notes were so mailed or delivered. The appellant's attorney shall also append any written suggestion or proposed correction in the notes. The appellee's counsel shall be entitled to have the use of the notes for five days from the date of the mailing or delivery of the same by the appellant, for the purpose of examination or suggesting corrections therein, and at the end of five days the notes shall be returned to the clerk. If neither party shall suggest any corrections, the notes shall upon their return to the clerk by the appellee become a part of the record. If corrections or suggestions as to alterations be made by either party, the clerk shall forthwith deliver in person, mail or express, the notes with all suggested corrections, to the trial judge, who shall make such corrections as may be proper and forthwith return the transcript of the notes to be corrected to the court reporter, who shall make all such corrections as the trial judge shall direct, and return the same to the judge within ten days, who shall thereupon sign and return the notes to the clerk of the court, which shall be considered a correct transcript. But if both parties to the litigation, or their attorneys, shall enter upon the court reporter's notes, or file in the supreme court a written agreement that the same as originally filed, or as subsequently modified by agreement, are correct, such transcribed notes shall become a part of the record in the case without the approval of the trial judge. (Emphasis added).
That section does not say and cannot honestly be construed to mean that the circuit court has the authority to grant additional time to attorneys for examination of the record.
For many years this Court has held that once an appeal has been filed in this Court that the Court has exclusive jurisdiction of all matters concerning said appeal except as provided by statute. Today's holding will do nothing but add to the delay in reaching a final determination of cases and will add to the backlog of this Court.
In my opinion the circuit judge was imminently correct in overruling the appellant's motion for time for lack of jurisdiction based on well-established and long-standing law.
BOWLING, J., joins this dissent.