Opinion
1 Div. 241.
June 17, 1969. Rehearing Denied by Court of Appeals August 19, 1969.
Appeal from the Circuit Court of Mobile County, Walter F. Gailard, J.
John Coleman, Mobile, for appellant.
When judicial officers fail or refuse to perform their duties in such a way as to deprive a person of a meaningful appeal, due process requires reversal of the cause and the granting of a new trial. Constitution of The United States, Amdts. 5, 14; 1901 Constitution of Alabama, Art. 1, § 6. Where an appellant is not furnished a complete transcript of trial proceedings because of a failure or refusal of court personnel to perform duties required of them by law, he is entitled to a new trial. Constitution of The United States, Amndts. 5, 14; 1901 Constitution of Alabama, Art. 1, § 6. Both State and Federal constitutional guarantees of due process render void any laws which place upon a defendant the affirmative duty to see that court personnel perform the duties required of them by law. Constitution of The United States, Amndts. 5, 14; 1901 Constitution of Alabama, Art. 1, § 6.
MacDonald Gallion, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
The remedy for the Court Reporter's failure to file the transcript is adequately provided for under the provisions of Title 7, Section 827(5), Code of Alabama 1940, which states as follows: "The term 'court reporter' as used in this law shall mean any person who shall be received and accepted by the court during the trial of a case, with the duty to record the testimony of witnesses in shorthand or stenotype notes for the purpose of preserving the testimony, whether such court reporter shall be an official court reporter or not; and any court reporter failing to transcribe and file testimony pursuant to the terms of this law, shall be subject to discipline on the part of the court as and for a contempt of court." As the trial court is the authority who may grant an extension of time to the Court Reporter for filing the transcript of evidence, it is to that Court and not this Honorable Court that appellant should have addressed himself for relief.
This is an appeal from a judgment of conviction of burglary in the second degree, carrying a penitentiary sentence of ten years.
We have only the record proper (or common law record) before us. The sole point claimed as error, is that after nine extensions of time, the circuit court reporter has failed to render a transcription of his shorthand notes of the testimony given at the trial.
The trial judge supervises the court reporter. Inasmuch as the circuit judge is the appointing authority, he holds the ultima ratio to persuade. See Michie's 1958 Code, T. 13, §§ 261-270(1c); also T. 7, § 827 (5).
The instant record contains no indication that the court reporter was granted a tenth or further extension. Therefore, the circuit clerk was within his rights (and hence duty bound) to send the record up in its present attenuated condition.
If the notes are lost or otherwise not forthcoming, Michie's Code, T. 7, § 827(3), affords an alternative. Pritchett v. State, 40 Ala. App. 498, 117 So.2d 345. See also Birdsell v. State, 41 Ala. App. 418, 133 So.2d 692, as to use of a tape recorder.
No claim has been made that Pharr is or was an indigent. Hence, we hold that Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, does not affect this appeal.
Having considered the record under Code 1940, T. 15, § 389, we hold the judgment below is due to be
Affirmed.