Rivera v. Harris

• Court: Georgia Supreme Court
• Writing for the Court: BELL
• Citation: Rivera v. Harris, 377 S.E.2d 844, 259 Ga. 171 (Ga. 1989)
• Decision Date: 06 April 1989
• Docket Number: No. 46541,46541
• Parties: RIVERA v. HARRIS.

Page 844

377 S.E.2d 844

259 Ga. 171

RIVERA v. HARRIS.

No. 46541.

Supreme Court of Georgia.

April 6, 1989.

Steven Rivera, Reidsville, pro se.

Michael J. Bowers, Atty. Gen., for Joe Frank Harris et al.

BELL, Justice.

This case began when the appellant, Steven Rivera, filed a pro-se complaint for mandamus as an indigent. The trial court, relying on OCGA § 9-15-2(d), refused to allow the complaint to be filed. Rivera then filed a notice of appeal, after which the clerk of superior court transmitted the record to this court. However, the clerk failed to include in the record a copy of the disallowed petition and other pertinent documents, which apparently have been lost or discarded. In an attempt to remedy these omissions, Rivera attached to his brief an appendix containing what he asserts are copies of the missing documents. For the following reasons, we affirm the judgment of the superior court, but without prejudice.

1. This court cannot consider the materials that Rivera has proffered in lieu of the omissions from the record. "Exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal. [Cit.]" Taylor v. Bentley, 166 Ga.App. 887, 305 S.E.2d 617 (1983).

2. It was Rivera's burden to ensure that his enumerations were supported by the record. Johnson v. State, 254 Ga. 591, 598(10), 331 S.E.2d 578 (1985); High v. Zant, 250 Ga. 693, 698(11), 300 S.E.2d 654 (1983). Once Rivera became aware that the record was incomplete, he could have moved to have the record completed under OCGA § 5-6-41(f). High, id. Generally, in cases in which the appellant does not move to have the record completed under § 5-6-41(f), we will find that there is nothing for this court to review in the appellate record, see High, id., and that we are bound to assume that the trial court ruled correctly, see Vaughan v. Buice, 253 Ga. 540, 322 S.E.2d 282 (1984).

3. However, in the present case we have exercised our discretion under OCGA § 5-6-48(d), by requesting the superior court to certify what transpired below that does not appear from the record on appeal. The superior court has indicated, in response, that it is unable to comply with this request. Under these circumstances, we find that it would have been futile for the appellant to have attempted to supplement the record, and that his failure to do so should not cause him prejudice.

4. Even so, given the fact that this court is unable to review the appeal because of the missing portions of the record, there remains the question of an appropriate remedy.

After careful consideration, we deem that the best remedy is to affirm the judgment of the trial court, but without prejudice to a second attempt by Rivera to file a complaint seeking the same relief...