Relf v. State, 5 Div. 671

• Citation: 267 Ala. 3,99 So.2d 216
• Decision Date: 07 November 1957
• Docket Number: 5 Div. 671
• Parties: William RELF v. The STATE of Alabama.
• Court: Supreme Court of Alabama

Page 216

99 So.2d 216

267 Ala. 3

William RELF v. The STATE of Alabama.

5 Div. 671.

Supreme Court of Alabama.

Nov. 7, 1957.

Rehearing Denied Dec. 19, 1957.

Harry D. Raymon, Tuskegee, for appellant.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Appellant was indicted, tried and convicted of rape, was sentenced for a term of thirty-five years in the penitentiary, and has appealed.

The State has filed a motion to strike the entire record and, in the alternative, has moved that the transcript of the evidence be stricken. The motion must be granted in both alternatives, and we shall discuss the reasons in each instance.

Appellant was convicted and sentenced on October 22, 1956, and on that same day, defendant gave 'notice of appeal to the Supreme Court of Alabama.'

Title 15, § 368, Code 1940, provides:

'Appeals in criminal cases must be taken at the time of sentence or confession of judgment, or within six months thereafter in manner following: (a) An entry of record that defendant appeals from the judgment with or without suspension of judgment, as he may elect, to be taken at the time of judgment rendered; or, (b) The filing of a written statement signed by the defendant or his attorney that defendant appeals from the judgment, the statement to be filed within six months; provided, however, that the trial court shall retain jurisdiction of the cause for the purpose of hearing and determining a motion for a new trial, seasonably made, and any appeal from a judgment of conviction shall also raise he question of the correctness of the court's ruling on a motion for a new trial made within the time allowed, and in the manner prescribed by law.'

Appellant took his appeal at the time the judgment was rendered and any later compliance with subsection (b) of § 368 was ineffectual. An appeal is taken, within the meaning of the statute, when the record shows the defendant has expressed a desire to take an appeal and has complied with the statutory requirements upon which the law gives the right, Campbell, v. State, 182 Ala. 18, 62 So. 57; Sherman v. State, 15 Ala.App. 175, 72 So. 755; or to express it differently--an appeal is deemed perfected if the defendant, upon the rendition of a judgment, expresses a desire to appeal. McDaniel v. State, Ala.App., 96 So.2d 319.

Act No. 886, Acts of Alabama 1951, p. 1527, listed in the Pocket Part of the Code as Tit. 7, §§ 827(1)-827(6), as amended by Act No. 97, Acts of Alabama Special Sessions 1956, p. 143, provides that the court reporter's transcript of the evidence must be filed with the clerk of the circuit court within sixty days from the date on which the appeal was taken; or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later.

Here, a motion for a new trial was timely made and duly and legally continued until January 31, 1957. No further orders pertaining to the motion were made until February 6, 1957, when it was overruled. The motion, therefore, became discontinued and the order overruling the motion was of no effect. Clark v. State, 38 Ala.App. 480, 87 So.2d 669; McVey v. State, 38 Ala.App. 327, 82 So.2d 926. Since there was no judgment on the motion, there was no new point of departure from which the time for filing the transcript of the evidence could begin to run. The time, therefore, must be dated back to the date on which the appeal is taken. Stallings v. Clark, 218 Ala. 31, 117 So. 467; Folmar v. First Nat. Bank of Montgomery, 223 Ala. 625, 137 So. 777; Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290. See Richards v. Williams, 231 Ala. 450, 165 So. 820; Merritt v. Carter, 243 Ala. 272, 9 So.2d 779; Pate v. State, 244 Ala. 396, 14 So.2d 251.

Applying the law of these cases to the facts in the instant case, it follows that the transcript of the evidence should have been filed within sixty days after October 22, 1956, unless the time was extended by the trial court for cause. It was not filed until May 2, 1957, more than four months after it was due, and there is nothing in the record showing that the period of time for filing the transcript with the clerk was 'extended by the trial court for cause' as provided by the statute. The motion to strike the transcript of the evidence must be granted. Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247; McDaniel v. State, Ala.App., 96 So.2d 319.

We come now to the question of whether the transcript of the record should be stricken.

The appellant gave notice of appeal on October 22, 1956; the sixtieth day thereafter was December 21, 1956. The transcript of the record was filed in this court on May 21, 1957.

Supreme Court Rule 37, Code 1940, Tit. 7 Appendix, as amended February 17, 1956, reads as follows:

'In all cases, either civil or criminal, the transcript shall be filed with the clerk of this court within sixty days after the signing or establishing of the bill of exceptions or the expiration of the time for establishing the same except in equity cases the transcript shall be filed within sixty days of the taking of the appeal. Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days, and this extension may be made within the thirty additional days, provided that in no event shall such extension project the time for filing the transcript beyond ninety days. Thereafter the time for filing in this court may be extended only by this court for good cause shown upon petition in writing of which adversary counsel must have ten days' notice. The application to the trial judge and a ruling thereon is a prerequisite to making the application to this court, unless it be shown that the trial judge was unavailable or that the application to him for an extension was not made for a good and sufficient reason. A copy of any order of trial judge extending the time for filing transcript shall be filed by appellant in this court within five days from the date of such order.'

Rule 37 clearly requires the filing of the transcript of the record in this court within sixty days from two possible dates. The first date is the actual establishment of the bill of exceptions or the transcript of the testimony. The procedure for establishing the bill of exceptions or...