Hart v. State

264 S.E.2d 542, 153 Ga. App. 53, 1980 Ga. App. LEXIS 1668

Opinion

Quillian, Presiding Judge.

Defendant appeals the dismissal of his appeal by the trial court for delay in filing a transcript. Held:

Defendant was convicted of a felony violation of the Controlled Substances Act on February 15,1977 and filed notice of appeal on February 18, 1977. On July 13, 1979, the state filed a motion to dismiss the appeal because the transcript had not been filed. The trial court dismissed the appeal in accordance with Code Ann. § 6-809 (b) (Ga. L. 1965, pp. 18, 29; as amended through 1978, p. 1986), finding that the delay in filing the transcript was unreasonable, inexcusable, and caused by defendant not ordering a transcript from the reporter.

The trial court erred. "Code Ann. § 6-805 (a) provides that in all felony cases, the transcript of evidence and proceedings shall be reported and prepared as provided in Code § 27-2401. Code § 27-2401 provides that in the event of the jury returning a verdict of guilty in a felony case, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. Both of these statutes use the word 'shall,’ and Code § 27-2401 makes it the duty of the state to file the transcript with the clerk of the trial court when the jury renders a verdict of guilty in a felony case... This failure [to file a transcript] was not and is not the fault of the appellant. To the contrary, it is the duty of the state to file the transcript after a guilty verdict has been returned in a felony case.” Wade v. State, 231 Ga. 131, 133 (200 SE2d 271). Accord, Parrott v. State, 134 Ga. App. 160 (214 SE2d 3).

Submitted November 19, 1979 Decided January 10, 1980 Ken Gordon, for appellant. William F. Lee, Jr., District Attorney, Marc E. Aeree, Assistant District Attorney, for appellee.

Judgment reversed.

Smith and Birdsong, JJ., concur.