Saylor v. State

177 So. 2d 924, 42 Ala. App. 666, 1965 Ala. App. LEXIS 345

• Court: Alabama Court of Appeals
• Decided: March 9, 1965
• Docket: 6 Div. 47
• Status: Published

Opinions

JOHNSON, Judge.

On June 10, 1964, this appellant was, pursuant to a jury verdict, adjudged guilty of murder in the second degree.

Appellant gave notice of appeal on the same day, June 10, 1964.

The Attorney General has filed a motion to strike the transcript of the evidence on the ground that it was not filed with the clerk below within the time required by law.

Under Sections 827(l)-827(6), Title 7, Code of Alabama 1940 (pocket part), the court reporter’s transcript of the evidence, in the absence of proper extension of time, must be filed with the clerk below within sixty days from the date of appeal, or within sixty days from the ruling on motion for a new trial, whichever is later.

It does not appear from the record that appellant filed a motion for a new trial. No extension of time for filing the transcript of evidence was granted by the court below. Therefore, the transcript of evidence should have been filed with the clerk below within sixty days after June 10, 1964, or on or before August 10, 1964 (August 9, 1964, being Sunday). It was not filed until September 1, 1964. Thus, the motion to strike the transcript of evidence must be, and is, hereby granted.

It remains to consider whether this appeal should be denied on the transcript of the record — or record proper.

Where, as here, the transcript of the evidence is not timely filed, the time within which the record proper must be filed in this court is sixty days from the date upon which the transcript of the evidence could, or should have been filed with the clerk below. Relf v. State, 267 Ala. 3, 99 So.2d 216. This was sixty days after August 10, 1964, or on or before October 9, 1964. The record proper was filed in this court on October 8, 1964, obviously within the time required. Thus, the appeal must be considered on the record proper.

We have examined the transcript of the record and found no error therein, and this cause is therefore due to be and the same is hereby

Affirmed.