Opinion
No. 26894
Decided November 24, 1975. Opinion modified and as modified rehearing denied December 15, 1975.
Original proceeding by petitioner for a writ in the nature of mandamus to compel the district court to provide him with free transcripts of two preliminary hearings. Rule to show cause issued.
Rule Discharged
1. COSTS — Indigency — Finding — Not For All Purposes. A finding of indigency for one purpose is not necessarily a finding of indigency for all purposes.
2. Transcript — Indigent — Right — Not Absolute. An indigent's right to a transcript of a proceeding is not an absolute one.
3. Indigent — Appointment of Counsel — Free Transcripts — Denial — Alternative — Finding — Discretion. Where trial court found that defendant, who was indigent for purpose of appointment of counsel, was not an indigent for purpose of being provided with free transcripts of two preliminary hearings in prosecution for rape and was not entitled to such free transcripts since an adequate alternative existed, held, in so finding, trial court acted within its discretion.
4. MANDAMUS — Remedy — Improper — Trial Court — Discretion — Appellate Rules. Where trial court acted within its discretion pursuant to C.A.R. 21(d), mandamus was not the proper remedy.
Original Proceeding
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, C. Phillip Miller, Deputy, for petitioner.
Floyd Marks, District Attorney, Brian T. McCauley, Deputy, for respondent.
This is an original proceeding for a writ in the nature of mandamus. We issued a rule to show cause why the relief requested should not be granted and the respondent court answered. We now discharge the rule.
Petitioner brought this proceeding to compel the district court to provide him with free transcripts of two preliminary hearings. Petitioner was charged with the crime of rape. On February 14, 1975 a preliminary hearing was held in the county court. That court found no probable cause and dismissed the charge. On March 3, 1975, the district attorney filed rape charges directly in the district court. A second preliminary hearing was held and this time the district judge found probable cause. Petitioner then requested that he be provided with free transcripts of the two preliminary hearings. This motion was twice denied by the chief district judge.
The district court did not summarily deny the transcript request. A hearing was held on the motion. At the conclusion of the hearing, the judge stated:
"The Court believ[es] that a transcript was not in order as the Court Reporter could be subpoenaed to read the notes; and further that since the Defendants are receiving free legal services they should be in a position to pay their own transcripts." (Minute order of June 13, 1975)
[1] We read this statement to be a finding that while Petitioner was an indigent for the purpose of appointment of counsel, he was not an indigent for the purpose of being provided with free transcripts. At the time of this hearing there was no proof otherwise. A finding of indigency for one purpose is not necessarily a finding of indigency for all purposes. See People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975).
[2] Moreover, an indigent's right to a transcript of a proceeding is not an absolute one. Several exceptions to the right to free transcripts have been noted by this and other courts. See Snavely v. Shannon, 182 Colo. 223, 511 P.2d 905 (1973); Nugent v. District Court, 184 Colo. 353, 520 P.2d 592 (1974).
[3] The district court made a finding in this case that an adequate alternative to a free transcript existed here. The United States Supreme Court has held that the existence of an adequate alternative to a free transcript is a permissible basis for the denial of the free transcript request. See Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).
[4] The trial court in this case thus exercised the discretion given him under the law. C.A.R. 21(d) states that where the action of trial court is within its discretion, prohibition or mandamus shall not be a remedy, but the same may be a ground for appeal after final judgment.
Accordingly we discharge the rule as improvidently granted.