Opinion
No. 38489
Decided June 3, 1964.
Mandamus — By indigent prisoner after conviction — To procure transcript of proceedings — Time for appeal passed — No appeal pending — Not entitled to transcript at public expense.
IN MANDAMUS.
This is an action in mandamus originating in this court. Relator, Charles Braxton, Jr., seeks by this action to compel respondent to furnish him a copy of the transcript of testimony taken at his trial and all the records relating to his arrest and conviction for rape.
Relator, while represented by counsel, was tried and found guilty of rape on December 7, 1961. His motion for a new trial was overruled on January 13, 1962. Apparently, relator filed a notice of appeal within rule but failed to prosecute his appeal. Subsequently, in June 1963, relator dismissed his original notice of appeal and on June 24, 1963, filed a new notice of appeal. In July 1963, he filed a motion to procure the records in his case for the purpose of appeal, which motion was denied. Relator has no present appeal pending.
Mr. Charles Braxton, Jr., in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
The right of an indigent accused to be furnished a copy of the transcript of the evidence and the records relating to his arrest and conviction at the expense of the state is dependent upon his having either a present appeal as of right from his conviction or an actual appeal pending pursuant to the allowance of a motion for leave to appeal. State, ex rel. Partee, v. McMahon, Judge, 175 Ohio St. 243; and State, ex rel. Vaughn, v. Reid, Clerk, 173 Ohio St. 464.
The time for relator to appeal as a matter of right has long passed, and, inasmuch as he has no actual appeal pending, he is not entitled to a transcript at public expense.
There being no clear legal duty to furnish the records demanded by relator, the writ of mandamus is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.