Hornbuckle v. State, 8 Div. 943
| Citation | 268 Ala. 347,105 So.2d 864 |
| Decision Date | 09 October 1958 |
| Docket Number | 8 Div. 943 |
| Parties | Robert Horace HORNBUCKLE v. The STATE of Alabama. |
| Court | Supreme Court of Alabama |
Smith, Johnston & Butler, Huntsville, for appellant.
John Patterson, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the second degree and sentenced to ninety-nine years imprisonment in the penitentiary.
The State has filed a motion to dismiss the appeal because the transcript was filed more than sixty days after the transcript of the evidence was established in the trial court.
Supreme Court Rule 37, as amended, Code 1940 Tit. 7 Appendix, provides that the transcript shall be filed with the clerk of this court within sixty days after the transcript of the evidence has been established in the court below. It also provides that the trial court and this court may extend the time for filing the transcript with this court--263 Ala. XXI. There is nothing in the record to indicate that an extension of time was sought as provided by the rule.
The transcript of the evidence was filed, and the attorneys of record notified on March 10, 1958. Lane v. State, 38 Ala.App. 487, 87 So.2d 668, holds that the sixty day period allowed by Supreme Court Rule 37 for filing the transcript of the record begins to run from the date the transcript of the evidence is filed in the circuit court, there being no objections filed to the transcript of the evidence. Here no objections were filed and the time began to run from the date of the filing, March 10, 1958.
Supreme Court Rule 37, as amended, would require the filing of the transcript of the record in this court within sixty days from March 10, which would be May 9, 1958. Relf v. State, 267 Ala. 3, 99 So.2d 216. The filing occurred one day later, May 10, 1958.
Where no extensions of time are sought, it has been held that the appellate court is precluded from 'going into the merits or demerits of the delay.' West v. State, Ala.App., 101 So.2d 638, 639, certiorari denied 267 Ala. 700, 101 So.2d 640.
It follows that the motion to dismiss the appeal must be granted. This rule cannot be considered harsh when it is borne in mind that Supreme Court Rule 16 requires that the clerk of this court 'shall notify the appellant and the appellee, or their attorneys, when the record is filed in this court.' That gives the appellant the exact date of the filing of the transcript of the...
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