Massey v. State

181 S.E.2d 71, 227 Ga. 257, 1971 Ga. LEXIS 664

• Court: Supreme Court of Georgia
• Decided: January 8, 1971
• Docket: 26211
• Status: Published

Opinion

Grice, Justice.

This appeal is from the denial of appellant’s motion for a change of venue on the issue of penalty in a conviction of rape. For former appearance, see Massey v. State, 224 Ga. 721 (164 SE2d 786) cert. den. 395 U. S. 912.

Submitted December 14, 1970 Decided January 8, 1971 Rehearing denied February 2, 1971. Howard Moore, Jr., Peter E. Rindskopf, for appellant. W. J. Forehand, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.

The appellee has moved to dismiss the appeal upon two grounds, asserting in essence, (1) that there is no appealable judgment and (2) that the transcript of evidence was not filed in the time allowed by law.

Assuming arguendo that there is an appealable judgment as contended by the appellant, the appeal must be dismissed.

The Appellate Practice Act (Ga. L. 1965, pp. 18, 26; Code Ann. § 6-806) requires that the transcript of evidence be filed within 30 days of the notice of appeal. Here the notice of appeal was filed on July 20, 1970, and the transcript of evidence was not filed until October 1, 1970, 72 days later. The record shows no grant of extension of time for filing the transcript.

Under the foregoing circumstances the appeal must be regarded as stale and subject to dismissal pursuant to the responsibility of this court under the Georgia Constitution (Art. VI, Sec. II, Par. V; Code Ann. §2-3705). The motion to dismiss is therefore granted. Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126); Addis v. First Kingston Corp., 225 Ga. 231 (167 SE2d 656); Stevens v. Clayton County, 226 Ga. 528 (175 SE2d 831); Fowler v. State, 226 Ga. 646 (177 SE2d 47).

Appeal dismissed.

All the Justices concur.