Montford v. State, 65033

CourtUnited States Court of Appeals (Georgia)
Citation298 S.E.2d 319,164 Ga.App. 627
Docket NumberNo. 65033,65033
PartiesMONTFORD et al. v. The STATE.
Decision Date03 December 1982

Richard T. Taylor, Dublin, Karl M. Rice, Macon, for appellant.

Beverly B. Hayes, Dist. Atty., Dublin, for appellee.


On October 6, 1976, Swayze Montford and Phillip Hodge, along with one other, were tried for the crime of armed robbery. Montford and Hodge were convicted as charged. The third individual's involvement ended in a mistrial. Montford and Hodge were each sentenced to serve life imprisonment. The court reporter who took down the transcript, after the trial but before the transcript was prepared, left the employ of the court. As a result the transcript remained inchoate on tape. Though the reporter was asked to prepare a transcript after he left the court's employ, the reporter declined to do so. Appellants each filed a motion for new trial on October 19, 1976. However, the motion could not be considered because of the lack of a transcript.

Four requests for an extension were filed during 1976 and 1977 in order to obtain a transcript and perfect the motions for new trial. In September, 1977, the trial defense requested permission to withdraw as counsel, which request was granted by the trial court. Therefore the pending motion for new trial remained inactive. Ultimately newly appointed counsel moved on August 12, 1981, for a complete transcript in order to continue and perfect the motion for new trial. A hearing was held on this motion, and it was determined that the tapes were very difficult to understand and contained much which was inaudible. The trial court granted motion for and ordered a complete and accurate transcript including the voir dire, opening statements and closing arguments. Though the present court reporter was able reasonably to transcribe most of the trial proper (i.e., testimony of witnesses, objections, rulings, etc.) apparently the court reporter was not able to or did not transcribe the voir dire, opening statements and closing arguments. Additionally, portions of the court's charge and other portions of the record could not be deciphered. Affidavits from the trial counsel and of the judge presiding at the trial (now a senior judge) could not fill in the missing elements. Appointed counsel moved for a new trial on three grounds: (1) that the absence of a complete and accurate transcript precluded due process in the appellate process; (2) the general grounds; and (3) a portion of the charge of the court. The trial court denied the motion for new trial and appellants appeal that ruling. Held:

We need only address the first mentioned ground on the motion for new trial. In considering this asserted denial of a full and accurate transcript, we observe that the appellee has not filed a responsive brief. The failure of the appellee to file a brief does nothing to the case except to admit the statement of facts by the appellant, which so far as they are supported by the record, this court may accept as being prima facie true. Colson v. State, 138 Ga.App. 366(1), 226 S.E.2d 154. We are faced therefore with a transcript on appeal that was delayed from October, 1976 until July, 1982, almost six years, due to the unwillingness or inability of the court reporter to furnish a complete and accurate transcript. Even when ultimately submitted by a new reporter, the transcript did not conform to the order of the trial court, for the transcript does not include the voir dire, opening statements or closing arguments, nor could portions of the trial proceedings be fully reproduced.


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9 cases
  • Lopez v. State, 16677
    • United States
    • Nevada Supreme Court of Nevada
    • February 27, 1989
    ...See Butler v. State, 264 Ark. 243, 570 S.W.2d 272, 274-275 (1978); Craig v. State, 510 So.2d 857, 861 (Fla.1987); Montford v. State, 164 Ga.App. 627, 298 S.E.2d 319, 321 (1982); State v. Wright, 97 Idaho 229, 542 P.2d 63, 64-65 (1975); State v. Dupris, 373 N.W.2d 446, 449 (S.D.1985); State ......
  • Johnson v. State, S17A1105.
    • United States
    • Supreme Court of Georgia
    • October 2, 2017
    ...that "the omissions in the transcript preclude us from finding that [the omissions] were immaterial and harmless"); Montford v. State, 164 Ga. App. 627, 628, 298 S.E.2d 319 (1982) (ordering a new trial when the court reporter refused to make the transcription and all of the tapes of the tri......
  • Foster v. State, 71566
    • United States
    • United States Court of Appeals (Georgia)
    • March 18, 1986 to every aspect of the photographic displays. Compare McElwee v. State, 147 Ga.App. 84, 248 S.E.2d 162 (1978); Montford v. State, 164 Ga.App. 627, 298 S.E.2d 319 (1982). There is testimony describing the various photographs, how they were similar, how they differed, and how they were uti......
  • Sheard v. State, S16A1291
    • United States
    • Supreme Court of Georgia
    • November 7, 2016
    ...a correct transcript, through no fault of the appellant, effectively deprives the defendant of his right to appeal." Montford v. State, 164 Ga.App. 627, 628, 298 S.E.2d 319 (1982). The mere fact that a portion of a transcript is missing does not automatically entitle a defendant to a new tr......
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