Walker v. State

• Decision Date: 15 January 1980
• Docket Number: No. 58617,58617
• Citation: 264 S.E.2d 565,153 Ga.App. 89
• Parties: WALKER v. The STATE.
• Court: Georgia Court of Appeals

Page 565

264 S.E.2d 565

153 Ga.App. 89

WALKER v.The STATE.

No. 58617.

Court of Appeals of Georgia.

Argued Oct. 2, 1979.

Decided Jan. 15, 1980.

Charles M. Lako, Jr., Atlanta, for appellant.

Hinson McAuliffe, Sol., Charles R. Hadaway, Asst. Sol., for appellee.

CARLEY, Judge.

At her non-jury misdemeanor trial for theft by taking, appellant was represented by appointed counsel because she asserted that she was indigent.The proceedings were not transcribed.An appeal was taken to this court by a second appointed counsel claiming that appellant was denied her right to appeal because no transcript was available.Because of uncertainty as to appellant's status as an indigent, this court, by an unpublished order dated September 26, 1978, remanded the case to the trial court, directing that a hearing be held to determine the issue of indigency and to determine whether, if appellant were indigent, a full verbatim record was necessary to afford appellant her right to appeal.Walker v. State, Case No. 56394.After a hearing, the trial court found appellant not to be indigent and that a transcript from recollection (Code Ann. § 6-805(g)) would suffice.In this appeal, appellant raises the general grounds and enumerates as error the trial court's failure to provide for the recordation and transcription of the entire proceedings at trial.Appellant also contends that the trial court erred in not producing a transcript from recollection immediately after trial and that a transcript from recollection, which appellant contends was produced at the hearing mandated by the prior order of this court, is not, under the circumstances here, sufficient.

1.The enumeration of error complaining of the trial court's failure to provide for recording and transcription of the trial proceedings is without merit.If appellant was not indigent (as the trial court found), she could have had the trial reported at her own expense.Code Ann. § 6-805 (j).Having failed to do so, she must accept the consequences, including the possibility that a record adequate for appeal could not be prepared by one of the alternate methods provided by Ga.Code Ann. § 6-805.Thomas v. State, 151 Ga.App. 562(1), 260 S.E.2d 556(1979).

If, on the other hand, appellant was indigent at the time of her trial, she was entitled to a free transcript for appeal purposes (seeBailey v. State, 232 Ga. 873), 209 S.E.2d 204(1974), and could have requested, pursuant to Code Ann. § 6-805(b), that the trial be reported at the state's expense.She did not do so.The lack of a verbatim transcript being due to appellant's non-action, this court finds no cause for reversal because of the trial court's failure to have the trial reported.

2.In two enumerations of error, appellant complains of the lack of timeliness and sufficiency of a transcript from recollection.We find no merit in either argument for the simple reason that no such transcript appears in the record of this case.

Under Code Ann. § 6-806, the appellant has the responsibility for causing the transcript to be prepared and filed as provided by Code Ann. § 6-805 unless the appellant has designated that the transcript not be included in the record.In this case, appellant did designate inclusion of the transcript.When the record was transmitted, no transcript was included and this court returned the record to be completed.When the record was returned to this court, the only transcript included was the one from the hearing on indigency.Although both parties have treated that transcript as a transcript prepared from recollection, we are...