Billups v. State
| Citation | 214 S.E.2d 884,234 Ga. 147 |
| Decision Date | 08 April 1975 |
| Docket Number | No. 29746,29746 |
| Parties | Wyman BILLUPS v. The STATE. |
| Court | Georgia Supreme Court |
Wyman Billups, pro se.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Atlanta, for appellee.
Syllabus Opinion by the Court
Wyman Billups sought a writ of mandamus on May 14, 1974, to require the clerk of the Fulton Superior Court to furnish him a transcript of the trial in which he was convicted of armed robbery and aggravated assault and sentenced to serve twenty and ten years respectively. The appellant had retained counsel at his September 24, 1973, trial and no appeal was taken therefrom. The writ of mandamus was denied on June 19, 1974, and the appellant was furnished a copy of the order, the indictment, the plea and the sentence. On August 19, 1974, the appellant again sought a writ of mandamus against the State of Georgia to obtain a certified copy of the trial transcript, criminal warrant and arrest, commitment motions, and the verbatim copy of the 'district attorney's charge to the Grand Jury.' The writ was denied on August 28, 1974 because there was no motion or appeal pending in the case, no justification or necessity for transmittal of the requested documents had been shown, and because a copy of the indictment and sentence had previously been furnished the applicant. The appeal is from this judgment. Held:
There is no motion for new trial or appeal pending in this case.
In Wilson v. Downie, 228 Ga. 656, 658, 187 S.E.2d 293, 295 it was said: Accord, Mullen v. Caldwell, 229 Ga. 575(3), 193 S.E.2d 601; Griffin v. Smith, 228 Ga. 177(3), 184 S.E.2d 459; Keys v. State, 127 Ga.App. 404, 193 S.E.2d 891. It follows that the contentions of the appellant are not meritorious.
Judgment affirmed.
All the Justices concur, except GUNTER, INGRAM and HILL, JJ., who dissent.
Wyman Billups was indicted for commission of two felonies. He pled not guilty was tried on September 24, 1973, and was convicted in Fulton Superior Court. At trial he was represented by retained counsel. No appeal was filed.
In May, 1974, appellant Billups filed a 'Petition and Motion for a Writ of Mandamus in forma pauperis' in Fulton Superior Court seeking essentially a copy of his criminal trial transcript. An order was entered denying appellant's prayers.
In August, 1974, appellant filed a 'Motion for Records' in Fulton Superior Court, seeking copy of his criminal trial transcript 'as petitioner desires to further prosecute his case . . .' The motion does not specify whether petitioner would seek habeas corpus, out of time appeal, or what. An order was entered denying the requested relief. Notice of appeal was timely filed and this court has chosen to decide the case on the merits.
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 section 27-2401, or as may hereafter be provided by law.' Thus, in felony cases, the evidence is to be reported.
Code Ann. § 27-2401 provides in pertinent part that: 'On the trial of all felonies the presiding judge shall have the testimony taken down . . . In the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose.' Thus, in felony cases resulting in guilty verdicts the testimony is to be transcribed.
Code Ann. § 6-805(e) provides that 'Where a civil or criminal trial is reported by a court reporter, and the evidence and proceedings are transcribed, the reporter shall complete the transcript and file the original and one copy thereof with the clerk of the trial court, together with his certificate attesting to the correctness thereof.' Thus, in felony cases the court reporter is to complete and file the transcript.
There is a presumption that public officers do their duty. Cole v. Foster, 207 Ga. 416, 421, 61 S.E.2d 814. Court reporters appointed to office by the judges of the superior courts are public officers. Code § 24-3101. We therefore can presume that the transcript of Wyman Billups' felony trial is on file in Fulton Superior Court, where it is a public record open for inspection and copying. Code Ann. §§ 40-2701, 40-2702. However, he is not at liberty to go to Fulton County for that purpose and he has no funds to pay for copying.
Instead, he has moved the Superior Court of Fulton County, first by petition for writ of mandamus in forma pauperis and later by motion for records, that he be furnished copy of his trial transcript. His requests were denied on the grounds, inter alia, that he did not appeal his criminal conviction and no justification or necessity for transmittal of the requested transcript has been shown. (It should be noted that the public inspection and copying provisions of our law, Code Ann. §§ 40-2701, 40-2702, do not require the person desiring to inspect or copy records to show justification or necessity therefor.)
A convicted person who appeals has a right to the trial transcript. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
An applicant for habeas corpus has a right to the transcript of the habeas proceeding. Code Ann. § 50-127(8); Bassett v. Smith, 398 U.S. 435, 90 S.Ct. 1885, 26 L.Ed.2d 386; Bassett v. Smith, 226 Ga. 686, 177 S.E.2d 88.
A person seeking habeas corpus in federal court can obtain his state criminal trial transcript. The federal habeas corpus act provides that (28 U.S.C.A. § 2254(e))
Practically the only person in Georgia who cannot get a copy of Wyman Billups' criminal trial transcript is Wyman Billups. He could have gotten it if he had appealed. He can still get it through the federal court. But right now, he cannot, because he is indigent.
A nonindigent prisoner could pay for a copy of his criminal trial transcript. Code Ann. § 40-2702, supra. To deny it to an indigent prisoner is to deny him equal protection. Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290. Long, supra, involved the transcript of the indigent's habeas corpus proceeding, but the difference in treatment between indigent and nonindigent is the same.
Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 clearly suggests that the state is required to give a prisoner access to his criminal trial transcript for his use in bringing habeas corpus. There, as here, the petitioner started by application and motion in the state court system. Next he sought habeas in the District Court, which granted him relief. The Circuit Court of Appeals reversed, holding that petitioner was not entitled to a transcript merely to enable him to comb the record in the hope of discovering some flaw. The Supreme Court granted certiorari and vacated the judgments of the lower courts, saying that it would not reach the constitutional issue until it was shown that petitioner was unable to borrow a copy from state authorities or unable to get the state court to direct a custodian of a copy to make it available to him.
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...appeal of his conviction, such is not the case in collateral post-conviction proceedings." (Punctuation omitted.) Orr v. Couch.7 See Billups v. State.8 "[T]here is no absolute constitutional or statutory right to a transcript for use in a collateral attack on a conviction." Boddie v. State.......
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