(Ga. L. 1965, p. 18, § 10; Ga. L. 1993, p. 1315, § 1; Ga. L. 2019, p. 845, § 2-4/HB 239.)
The 2019 amendment, effective May 7, 2019, inserted ", in the Georgia State-wide Business Court," near the middle of the first sentence of subsection (c).
Cross references.- Powers and duties of Judicial Council with regard to reporting of judicial proceedings, § 15-5-20 et seq.
Court reporters generally, T. 15, C. 14.
Filings in clerk's office, Rules of the Supreme Court of the State of Georgia, Rule 1.
Certification and transmittal of transcript and record, Rules of the Supreme Court of the State of Georgia, Rule 15.
Contents, form, and certification of transcript, Rules of the Supreme Court of the State of Georgia, Rule 18.
Submission of physical evidence, Rules of the Supreme Court of the State of Georgia, Rule 19.
Objection to failure to comply with Appellate Practice Act, Rules of the Supreme Court of the State of Georgia, Rule 20.
Presenting issue where record supplemented, Rules of the Supreme Court of the State of Georgia, Rule 48.
Preparation of records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 42.
Transmission of transcript, Rules of the Court of Appeals of the State of Georgia, Rule 44.
Objections to records or transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 47.
Law reviews.- For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For article, "Let's Revise Appellate Procedure in Georgia," see 27 Ga. St. B.J. 135 (1991). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).
JUDICIAL DECISIONSANALYSIS
One purpose of requirement of filing transcript under subsections (a) and (e) is to afford local counsel in county where case was tried convenient access to exact duplicate copy of record so as to enable counsel to easily ascertain proper references to be included in counsel's brief and written argument. Law v. Smith, 226 Ga. 298, 174 S.E.2d 893 (1970).
Section provides means of obtaining brief of evidence when not recorded at trial.
- When evidence was not reported, the only way of obtaining brief of evidence upon which the court may consider whether there should be a grant of the new trial is provided by this section and if the judge is unable to remember the evidence the evidence shall enter an order to that effect. Hill v. General Rediscount Corp., 116 Ga. App. 459, 157 S.E.2d 888 (1967).
Award of attorney fees.
- Trial court's award of attorney fees to a corporation was upheld as the sheriff challenging the award failed to file a transcript, and the appellate court had to assume that the trial court was authorized to award the fees. Barrett v. Marathon Inv. Corp., 268 Ga. App. 196, 601 S.E.2d 516 (2004).
When defendant claimed that the jury was not sworn, the defendant's remedy was to have the record corrected by following the provisions of subsection (f) of O.C.G.A. § 5-6-41. Grant v. State, 237 Ga. App. 892, 515 S.E.2d 872 (1999).
Filed transcript constitutes public record.
- Once the prepared transcript is filed with the trial court clerk, it becomes a matter of public record to which all members of the public have reasonable access. Georgia Am. Ins. Co. v. Varnum, 182 Ga. App. 907, 357 S.E.2d 609 (1987).
Exclusions from record not permitted.
- While the statutory scheme under O.C.G.A. § 5-6-43(a) contemplates requests by the appellee to include portions of the record that the appellant has designated for exclusion, it does not authorize the appellee to request exclusion of items the appellant desires to include. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660 (2015).
Trial court erred in ordering the trial court clerk to omit from the appellate record all submissions filed after entry of the permanent injunction because the statutory scheme presumes that a complete record will be transmitted to the appellate court unless the appellant specifically requests otherwise. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660 (2015).
Appellant not obligated to prepare record.
- Obligation of the appellant relates to the transcript, and the obligation for the preparation of the record rests with the clerk. After the appellant has filed a notice of appeal, the appellant's duty as to the record is limited to the payment of costs. When the clerk fails to transmit the record, but there is no indication that this failure is occasioned by the failure of a party to pay costs, the trial court has no discretion to dismiss the appeal. Long v. City of Midway, 251 Ga. 364, 306 S.E.2d 639 (1983).
Right to transcription.
- Although trial counsel failed to inform the appellant of the right to have the trial and proceedings transcribed, the appellant, through appellate counsel, did not attempt to file a transcript or stipulation of the case pursuant to O.C.G.A. § 5-6-41; accordingly, it is presumed that the lack of actual transcription was not prejudicial. Southerton v. State, 205 Ga. App. 366, 422 S.E.2d 251 (1992).
While any party in a civil case may, as a matter of right, have a case reported at the party's own expense, it is not incumbent upon the trial judge to arrange for the official reporter to take down the evidence, and when the plaintiff declined to have the hearing transcribed through a court reporter, the plaintiff could not later complain of the lack of a reporter. Hixson v. Hickson, 236 Ga. App. 894, 512 S.E.2d 648 (1999).
No transcript was either ordered or made for a trial.- When there is no direct proof of prejudice or bias on the part of a jury, an appellate court can set aside the verdict as excessive only when the amount, considered in connection with all the facts in evidence at trial, shakes the moral senses, i.e., the verdict must carry its death warrant on the verdict's face; however, such issues must be determined from the trial transcript, and when no transcript was either ordered or made for a trial in which a jury entered a judgment against a mortgage company, and the mortgage company made no attempt to have the trial court make a transcript or a reconstructed transcript of the proceedings approved by the trial judge, the appellate court assumed that the judgment was correct and supported by the evidence.
Burden on appellant to prepare transcript.
- Burden is on the appellants to prepare a copy of the transcript for inclusion in the appellate record. Young v. First Am. Bank, 196 Ga. App. 348, 396 S.E.2d 73 (1990).
It is the duty of appellant to have transcript prepared, if the transcript is needed for a decision in the case. Graham v. Haley, 224 Ga. 498, 162 S.E.2d 346 (1968).
Appellate court presumed that a trial court's judgment granting a writ of possession was correct as the appellant failed to file a transcript of the proceedings and apparently did not attempt to reconstruct the transcript on appeal. Fisher v. One Stop Mortg., 258 Ga. App. 479, 574 S.E.2d 605 (2002).
Delay in filing of transcript is not necessarily cause for dismissal.
- Because there was no evidence that an 11-day delay in the filing of a transcript for transmission as part of the appellate record discernibly delayed the docketing of the record in the appellate court, the trial court abused the court's discretion by concluding that the delay was unreasonable, and erred by dismissing an appeal. Fulton County Bd. of Tax Assessors v. Love, 289 Ga. App. 252, 656 S.E.2d 576 (2008).
Defendant only allowed 45 minutes to employ court reporter.
- Trial court did not err in only allowing defendant in forma pauperis 45 minutes in which to employ a court reporter after the defendant appeared at the hearing without one when the defendant was provided at least two weeks' notice of the date of the hearing and could have arranged for a court reporter to be present within this time period. Quaterman v. Weiss, 212 Ga. App. 563, 442 S.E.2d 813 (1994).
Filing of a pauper's affidavit does not relieve the appellant in a civil action from the responsibility of having the transcript prepared, pursuant to O.C.G.A. § 5-6-41. Wright v. Southern Inv. Properties, 204 Ga. App. 538, 419 S.E.2d 764 (1992).
Appellant must produce transcript from which existence of error may be determined.
- Appellant bears burden of showing error below, and when the appellant fails to provide a transcript from which existence of such error may be determined, the appellate court has nothing to review. Blackshear v. Blackshear, 232 Ga. 312, 206 S.E.2d 429 (1974), cert. denied, 419 U.S. 968, 95 S. Ct. 232, 42 L. Ed. 2d 184 (1975).
Transcript or stipulation of record prerequisite to consideration of errors.
- Enumeration of errors dependent upon transcript of evidence and proceedings cannot be reviewed by appellate court when it is not reported, there is a dispute between counsel of both parties as to what actually transpired at the hearing, and the trial court is unable to recall it. Cowart v. Cowart, 223 Ga. 487, 156 S.E.2d 94 (1967).
Absent transcript or stipulation of record, appellate court cannot consider evidentiary errors assigned. Mays v. Safeway Fin. Co., 139 Ga. App. 229, 228 S.E.2d 319 (1976).
When evidence is not brought before appellate court by any of the methods provided in this section, the judgment of the trial court on evidentiary matters cannot be reviewed. Burns v. Barnes, 154 Ga. App. 802, 270 S.E.2d 57 (1980); Williamson v. Williams, 156 Ga. App. 154, 274 S.E.2d 136 (1980); Welch v. Mercer, 165 Ga. App. 776, 302 S.E.2d 629 (1983); Blankenship v. Blankenship, 169 Ga. App. 715, 314 S.E.2d 491 (1984).
When the transcript of the trial has not been filed and transmitted to the Court of Appeals, there is no question presented upon which the Court of Appeals can pass. Harris v. Clark, 157 Ga. App. 549, 278 S.E.2d 132 (1981).
In the absence of a transcript, a record prepared from recollection, or a stipulation of the case, an appellate court cannot consider enumerations of error based on the evidence. Perry v. City of Hampton, 200 Ga. App. 329, 409 S.E.2d 92, cert. denied, 200 Ga. App. 897, 409 S.E.2d 92 (1991).
Superior court was required to presume, in the absence of a contrary showing, that the evidence introduced in the municipal court supported the defendant's convictions, because no transcript or summary of the evidence was contained in the record transmitted to the superior court by the municipal court. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992).
It is the appellant's obligation to provide the record substantiating the appellant's claim, and in its absence, the appellate court must affirm as to that issue. State v. Dukes, 234 Ga. App. 343, 507 S.E.2d 147 (1998).
When the plaintiff, in appealing a personal injury verdict, challenges the sufficiency of the evidence as plaintiff's only enumeration of error on appeal, it is necessary that the plaintiff include a transcript or recreation of the proceedings. Moss v. Flav-O-Rich, Inc., 231 Ga. App. 288, 498 S.E.2d 361 (1998).
Questions regarding proceedings not incorporated in transcript.
- Court of Appeals cannot consider questions with respect to proceedings on trial which are merely related in enumeration of errors but are not incorporated in properly authenticated transcript. Palmer v. Stevens, 115 Ga. App. 398, 154 S.E.2d 803 (1967); West v. State, 120 Ga. App. 390, 170 S.E.2d 698 (1969).
Omission from record on appeal of necessary transcript requires affirmance.
- When transcript is necessary for review and the appellant omits the transcript from the record on appeal, the appellate court must assume judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981); Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 462 S.E.2d 384 (1995); Tidwell v. White, 220 Ga. App. 415, 469 S.E.2d 258 (1996); Watson/Winter Joint Venture v. Milledge, 224 Ga. App. 395, 480 S.E.2d 389 (1997); McKinney v. Alexander Properties Group, Inc., 228 Ga. App. 77, 491 S.E.2d 131 (1997).
Defendant's claim, that the test results from a blood test were improperly admitted in a criminal trial because the state failed to establish by a preponderance of the evidence that the blood tested was actually the defendant's blood, lacked merit, as the defendant failed to have a transcript created or attached to the appeal of a pretrial hearing on the motion in limine addressing that issue, and pursuant to O.C.G.A. § 5-6-41(g), the appellate court presumed the trial was conducted in a regular and proper manner. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005).
When the appellant fails to bring up transcript or otherwise meet burden of affirmatively showing error by record, judgment below will not be disturbed. Burns v. Barnes, 154 Ga. App. 802, 270 S.E.2d 57 (1980); Welch v. Mercer, 165 Ga. App. 776, 302 S.E.2d 629 (1983).
Incomplete transcript required new trial.
- Defendant was entitled to a new trial because, despite nearly two decades, the state was unable to complete the transcript, the court reporter for the trial died, memories faded, the jury charge, which was missing, was a crucial portion of the trial, and the missing transcript hindered counsel's ability to adequately and zealously represent the defendant. Sheard v. State, 300 Ga. 117, 793 S.E.2d 386 (2016).
Corrected transcripts.
- Supplemental transcript submitted to the court some months after a hearing on a motion to suppress was permissible when the court reporter certified that corrections were required as a result of a proofing error in transcription. State v. Sneddon, 235 Ga. App. 739, 510 S.E.2d 566 (1998).
Uncertified transcript.
- In an appeal from a will contest, the propounder waived the argument that a superior court erred in relying on an uncertified transcript of a probate court hearing; an objection to the lack of certification was not raised in the superior court, and the propounder did not contend that the transcript contained any mistakes. Land v. Burkhalter, 283 Ga. 54, 656 S.E.2d 834 (2008).
In an appeal from a will contest, the propounder's argument that a proper foundation was not laid for the tape from which a transcript of the probate court hearing was prepared was waived by the propounder's failure to raise that objection in the superior court. Land v. Burkhalter, 283 Ga. 54, 656 S.E.2d 834 (2008).
It is duty of party asserting error to show error by the record. Assertions of evidence in briefs or enumerations of error cannot satisfy this duty. York v. Miller, 168 Ga. App. 849, 310 S.E.2d 577 (1983).
Appeal in which a consideration of the enumeration of errors is dependent upon a consideration of the evidence heard by the trial court will be affirmed if a transcript is not included as a part of the appellant record. The party asserting error has a duty to show the error by the record. McClaskey v. Jiffy Lube, Inc., 197 Ga. App. 537, 398 S.E.2d 825 (1990).
When the defendant did not amend or supplement the trial court record in order to reflect the necessary facts pursuant to O.C.G.A. § 5-6-41(f), and when the parties did not stipulate to facts pursuant to O.C.G.A. § 5-6-41(i), it was found that the defendant did not carry the burden of showing by the record that there were facts necessary to prove the defendant's claim under Batson of racial and gender discrimination in the jury; the trial court record on that issue only consisted of colloquy between counsel and the court, which was not competent evidence of the facts and was not a proper record upon which to establish a prima facie case of discrimination. Bowden v. State, 261 Ga. App. 422, 582 S.E.2d 564 (2003).
Absent transcript, court must assume evidence authorized judgment.
- When there is no transcript of evidence prepared by court reporter, nor transcript prepared from recollection, agreed to by parties, the Supreme Court must assume evidence authorized judgment. Drake v. Drake, 231 Ga. 193, 200 S.E.2d 719 (1973).
Absent transcript or stipulation of record as provided in section, appellate court must assume that rulings of the trial court judge were correct. Mays v. Safeway Fin. Co., 139 Ga. App. 229, 228 S.E.2d 319 (1976).
When no transcript is included in record on appeal, the Court of Appeals must assume that evidence was sufficient to support the judgment. Burns v. Barnes, 154 Ga. App. 802, 270 S.E.2d 57 (1980).
Appeal with enumerations of error dependent upon consideration of evidence heard by trial court will, absent transcript, be affirmed. Russell v. State, 155 Ga. App. 555, 271 S.E.2d 689 (1980).
In the absence of a transcript it must be assumed as a matter of law that the evidence adduced at the hearing supported the findings of the court. Smith v. State, 160 Ga. App. 26, 285 S.E.2d 749 (1981).
Lacking a transcript of the evidence considered by the trial court, an appellate court must presume that the judge correctly ruled on the issues presented. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).
When there is no transcript (none having been requested) and no agreed statement of the facts is furnished, the appellate court is bound to assume that the trial court's findings are supported by sufficient competent evidence, for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction. Siegel v. General Parts Corp., 165 Ga. App. 339, 301 S.E.2d 292 (1983).
When appellant brings an appeal contending that the trial court erred in giving one of appellee's requested charges because the evidence did not support such a charge, but no transcript is included as a part of the record on appeal, the appellate court must affirm. Welch v. Mercer, 165 Ga. App. 776, 302 S.E.2d 629 (1983).
Whenever the enumerations of error require a review of the evidence and a transcript is not included in the record on appeal, the enumerations must be deemed meritless and the judgment of the trial court affirmed. Camp v. Jordan, 168 Ga. App. 339, 309 S.E.2d 384 (1983).
When, on appeal from termination of his parental rights, appellant contends he was denied due process, a fair and impartial hearing, and the opportunity to present his case, and also maintains the trial court was biased, each of the appellant's enumerated errors requires review of the hearing transcript or the accepted substitute therefor, and in the absence of a transcript, the appellate court must assume the trial court's findings were supported by the evidence presented and the actions taken by the trial court during the hearing were appropriate. Baugh v. Robinson, 179 Ga. App. 571, 346 S.E.2d 918 (1986).
There being a presumption in favor of the regularity of proceedings in courts of competent jurisdiction, the Court of Appeals must assume that the trial court's findings are supported by sufficient competent evidence. Smallwood v. Mulkey, 198 Ga. App. 496, 402 S.E.2d 99 (1991).
When judge did not affirmatively state that the judge did not recall the voir dire proceedings, the absence of such an order was not error, when the error enumerated by the defendant is dependent on a transcript of evidence, and no transcript existed. Shuman v. Strickland Transport-Leasing Co., 203 Ga. App. 456, 416 S.E.2d 885 (1992).
When the evidence is not brought before the appellate court by transcript or any other method provided in O.C.G.A. § 5-6-41, judgment on evidentiary matters cannot be reviewed and the appellate court must assume that the judgment on appeal is correct. Wright v. Southern Inv. Properties, 204 Ga. App. 538, 419 S.E.2d 764 (1992).
For a civil litigant to present for appellate review a claim of error made during the course of the proceedings at trial, the litigant must include, at the barest minimum, a transcript of that portion of the proceedings in which the alleged error occurred; or, in the alternative, a sufficiently detailed stipulation approved by an appropriate judge of the court in which the proceedings were conducted. Tadlock v. Duncan, 215 Ga. App. 441, 451 S.E.2d 80 (1994).
In the absence of a trial transcript, the appellate court must assume as a matter of law that the evidence adduced at the hearing supported the trial court's findings, and thus, it could not consider the pro se defendant's assertion of the general grounds or the defendant's contention that the trial court failed to furnish the defendant with the accusation and a list of witnesses. Dunn v. State, 234 Ga. App. 623, 507 S.E.2d 170 (1998).
In the absence of either a transcript of lower court proceedings or an agreed statement of the events at trial, the appellate court must presume the trial judge ruled correctly on all issues presented and that the evidence was sufficient to support the judgment. Hixson v. Hickson, 236 Ga. App. 894, 512 S.E.2d 648 (1999).
When plaintiff law firm secured a default judgment against the defendant client and the client argued that the firm failed to provide competent evidence of the reasonableness of the fees that the firm charged the client, but the client failed to provide transcripts of the hearings which the trial court held regarding the reasonableness of the fees or a statement of facts made pursuant to O.C.G.A. § 5-6-41(g), the appellate court, in accordance with the presumption in favor of the regularity of court proceedings, was constrained to presume that the trial court's findings were supported by sufficient competent evidence. Sprewell v. Thomas & Hutson, 260 Ga. App. 312, 581 S.E.2d 322 (2003).
Motion for new trial is part of "proceedings" as contemplated by O.C.G.A. § 5-6-41. Hall v. State, 162 Ga. App. 713, 293 S.E.2d 862 (1982), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
When local rules of court are not set out in the record on appeal, an appellate court cannot take judicial cognizance of the content of these rules and must, therefore, presume that the trial court properly interpreted and applied the court's own rules insofar as the rules affect the judgment appealed from. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).
Document never admitted into evidence not part of appellate record.
- Document which was never actually admitted into evidence at trial cannot properly become a part of the record on appeal, but is not reversible error when the document is merely cumulative of competent evidence to the same effect. Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 308 S.E.2d 221 (1983).
Evidence never actually admitted at trial cannot properly become a part of the record on appeal when O.C.G.A. § 5-6-41is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Harp v. State, 204 Ga. App. 527, 420 S.E.2d 6 (1992), cert. denied, 204 Ga. App. 921, 420 S.E.2d 6 (1992).
Because the closing arguments in the defendant's child molestation trial were not transcribed, the defendant had the burden of having the record completed in the trial court under the provisions of O.C.G.A. § 5-6-41(f) in order to raise an argument on appeal regarding the prosecutor's closing argument; since the defendant failed to provide the necessary record to the appellate court, the defendant's claim of error was not reviewable. Jackson v. State, 256 Ga. App. 829, 570 S.E.2d 40 (2002).
Exclusion of court reporter's audio recording of plea hearing.
- Trial court did not abuse the court's discretion in excluding the court reporter's audio recording of the plea hearing because the defendant did not attempt to supplement the transcript using the proper procedures; the trial court did not err in considering the audio recording to be irrelevant as the court well recalled the hearing and the persons affected during the hearing; and, while the defendant contended that the emotion that was exhibited during the hearing was due to being pressured to plead guilty, the defendant did not suggest that the recording of the hearing contained any characteristic that revealed the reason for the emotions displayed, and thus failed to show why the true, complete, and correct record of the plea hearing needed to be supplemented. DeToma v. State, 296 Ga. 90, 765 S.E.2d 596 (2014).
Failure to properly supplement record.
- When a party seeks to have a record on appeal supplemented under O.C.G.A. § 5-6-41 but does not follow statutory procedures there is nothing for an appellate court to review. Cox v. Fillingim, 184 Ga. App. 205, 361 S.E.2d 65 (1987).
Because the defendant's motion for a continuance was not made a part of the record in the court below, the defendant failed to preserve any error in that regard for appellate review; the defendant took no action on the record to renew the objection to the timing of the retrial or to make a record of the trial court's ruling, and failed to implement any of the mechanisms provided in O.C.G.A. § 5-6-41 for supplementing the record on appeal. Anderson v. State, 276 Ga. App. 216, 622 S.E.2d 898 (2005).
To the extent that a defendant's claim of ineffective assistance of counsel during the defendant's trial for felony murder and other offenses pertained to events that were not reflected in the record, an affidavit by the defendant's trial counsel asserting that trial counsel should have made certain objections that were not made did not serve to supplement the record under O.C.G.A. § 5-6-41(f), and the affidavit's factual contentions, therefore, presented no issue for review on the defendant's appeal from the defendant's convictions and the denial of the defendant's motion for a new trial. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
Record supplemented appropriately.
- Since the trial judge held a hearing and supplemented the record, the defendant's claim that a lack of a complete transcript hampered the defendant's right to appeal lacked merit. Leeks v. State, 296 Ga. 515, 769 S.E.2d 296 (2015).
Trial court did not err when the court determined that the testimony at the hearing on the motion to supplement the record was sufficient because the trial court complied with the statute that permitted the parties to recreate the transcript from memory by holding a hearing on the state's motion to supplement the record and rehearing testimony of all but one of the witnesses who testified on the first day of trial as well as the recollections of the attorneys who tried the case; the trial court's adoption of that testimony to supplement the record was dispositive and not subject to review; and the trial court's ruling provided no basis to overturn the defendant's convictions or to grant the defendant a new trial. Mosley v. State, 300 Ga. 521, 796 S.E.2d 684 (2017).
Trial court did not err in granting the state's motion to perfect the record with certified copies of the defendant's prior felony convictions for financial transaction credit card fraud, theft by receiving, and possession of cocaine because the trial court was authorized to find that certified copies of the defendant's three prior felony convictions were considered by the court at the sentencing hearing, even if their admission was tacit rather than explicit. Barber v. State, 350 Ga. App. 309, 827 S.E.2d 733 (2019).
When trial judge has no independent recollection of trial.
- Criminal defendant's attempts to prepare and file a unilateral account of the proceedings below did not meet the requirements of O.C.G.A. § 5-6-41, when the trial court had no independent recollection of the defendant's battery trial, and no transcript was available. Dunn v. State, 234 Ga. App. 623, 507 S.E.2d 170 (1998).
Failure to timely transmit record and delay in raising issue.
- Defendant's due process rights were not violated by the trial court clerk's failure to timely transmit the record to the appellate court for docketing and resolution of the appeal because the defendant failed to raise this issue below, which contributed to the confusing state of the record, and the defendant failed to attempt any clarification or completion of the record via the remedies afforded by law during the seven year delay. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).
In an appeal of a criminal conviction, the appellate court chose to sua sponte reinstate the case to address the appellant's enumerations of error on the merits despite the failure to set forth in the notice of appeal the intention to rely upon a previously transmitted transcript because the court had not yet addressed the issue in a published opinion and used the case to place future appellants on notice that similar procedural errors may result in automatic affirmance of a trial court's decision. Holman v. State, 329 Ga. App. 393, 765 S.E.2d 614 (2014).
Cited in American Int'l Indus., Inc. v. Ivan Allen Co., 110 Ga. App. 148, 138 S.E.2d 61 (1964); McCranie v. Mullis, 221 Ga. 617, 146 S.E.2d 723 (1966); Webb v. Jones, 221 Ga. 754, 146 S.E.2d 910 (1966); Salisbury v. State, 222 Ga. 549, 150 S.E.2d 819 (1966); Holloway v. Poppell, 114 Ga. App. 531, 152 S.E.2d 4 (1966); Ledbetter v. State, 116 Ga. App. 276, 157 S.E.2d 40 (1967); Hair v. Chilton, 223 Ga. 632, 157 S.E.2d 290 (1967); Wilbanks v. State, 116 Ga. App. 698, 158 S.E.2d 274 (1967); Delta Corp. of Am. v. Aiken, 224 Ga. 241, 161 S.E.2d 293 (1968); Herring v. R.L. Mathis Certified Dairy Co., 118 Ga. App. 132, 162 S.E.2d 863 (1968); Leiter v. Arnold, 118 Ga. App. 108, 163 S.E.2d 235 (1968); Price v. State, 118 Ga. App. 207, 163 S.E.2d 243 (1968); Smith v. Smith, 224 Ga. 689, 164 S.E.2d 225 (1968); Greene v. McIntyre, 119 Ga. App. 296, 167 S.E.2d 203 (1969); Stephens v. State, 119 Ga. App. 674, 168 S.E.2d 333 (1969); Cohran v. Sosebee, 120 Ga. App. 115, 169 S.E.2d 624 (1969); O'Quinn v. State, 121 Ga. App. 231, 173 S.E.2d 409 (1970); Richardson v. Nu-Way Cleaners & Laundry, 121 Ga. App. 425, 174 S.E.2d 202 (1970); McKinney v. State, 121 Ga. App. 815, 175 S.E.2d 893 (1970); Duncan v. Duncan, 226 Ga. 605, 176 S.E.2d 88 (1970); Bridges v. State, 227 Ga. 24, 178 S.E.2d 861 (1970); O'Gorman v. O'Gorman, 227 Ga. 468, 181 S.E.2d 490 (1971); Wisenbaker v. Wisenbaker, 227 Ga. 610, 182 S.E.2d 114 (1971); Miller v. Sparks, 124 Ga. App. 4, 183 S.E.2d 88 (1971); Taylor v. Taylor, 228 Ga. 173, 184 S.E.2d 471 (1971); Ellison v. Labor Pool of Am., Inc., 228 Ga. 147, 184 S.E.2d 572 (1971); Lamb Bros. v. Industrial Credit Co., 228 Ga. 213, 184 S.E.2d 585 (1971); Herring v. Herring, 228 Ga. 492, 186 S.E.2d 538 (1971); Heard v. State, 126 Ga. App. 62, 189 S.E.2d 895 (1972); Penland v. State, 229 Ga. 256, 190 S.E.2d 900 (1972); United States Fid. & Guar. Co. v. Georgia Farm Bureau Mut. Ins. Co., 126 Ga. App. 831, 191 S.E.2d 893 (1972); Dalton v. State, 127 Ga. App. 504, 194 S.E.2d 268 (1972); Cagle v. Atchley, 127 Ga. App. 668, 194 S.E.2d 598 (1972); Huckaby v. State, 128 Ga. App. 79, 195 S.E.2d 688 (1973); Johnson v. State, 230 Ga. 196, 196 S.E.2d 385 (1973); Morris v. Jones, 128 Ga. App. 847, 198 S.E.2d 354 (1973); Allen v. State, 230 Ga. 772, 199 S.E.2d 246 (1973); MacNerland v. Barnes, 129 Ga. App. 367, 199 S.E.2d 564 (1973); Jenkins v. Jenkins, 231 Ga. 371, 202 S.E.2d 52 (1973); Jackson v. State, 130 Ga. App. 581, 203 S.E.2d 923 (1974); Nicholson v. Nicholson, 231 Ga. 760, 204 S.E.2d 292 (1974); Ayers Enters., Ltd. v. Adams, 131 Ga. App. 12, 205 S.E.2d 16 (1974); Maddox v. State, 131 Ga. App. 86, 205 S.E.2d 31 (1974); Castile v. Rich's, Inc., 131 Ga. App. 586, 206 S.E.2d 851 (1974); Darsey v. Darsey, 232 Ga. 381, 207 S.E.2d 22 (1974); Umstead v. State, 131 Ga. App. 833, 207 S.E.2d 238 (1974); Banks v. State, 132 Ga. App. 809, 209 S.E.2d 252 (1974); Brand v. Montega Corp., 233 Ga. 35, 209 S.E.2d 583 (1974); Brown v. State, 133 Ga. App. 56, 209 S.E.2d 721 (1974); Freedle v. Galloway, 133 Ga. App. 424, 211 S.E.2d 29 (1974); Mullins v. State, 133 Ga. App. 554, 211 S.E.2d 631 (1974); Parrott v. State, 133 Ga. App. 931, 213 S.E.2d 77 (1975); Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975); Coop Mtg. Invs. Assocs. v. Pendley, 134 Ga. App. 236, 214 S.E.2d 572 (1975); Bouldin v. Baum, 134 Ga. App. 484, 214 S.E.2d 734 (1975); Millcreek Properties, Inc. v. Gregory, 136 Ga. App. 511, 221 S.E.2d 685 (1975); Gillen v. Bostick, 234 Ga. 308, 215 S.E.2d 676 (1975); Savage v. Savage, 234 Ga. 853, 218 S.E.2d 568 (1975); Diamond v. Chatham County Bd. of Tax Assessors, 135 Ga. App. 645, 218 S.E.2d 657 (1975); Anderson v. Anderson, 235 Ga. 115, 218 S.E.2d 846 (1975); Tucker v. State, 136 Ga. App. 456, 221 S.E.2d 664 (1975); Smith v. State, 235 Ga. 852, 221 S.E.2d 601 (1976); Tele-Spot v. Garden Cities Corp., 137 Ga. App. 238, 223 S.E.2d 273 (1976); Cowart v. Cowart, 236 Ga. 626, 225 S.E.2d 5 (1976); McGregor v. Town of Fort Oglethorpe, 236 Ga. 711, 225 S.E.2d 238 (1976); Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976); Stanley v. Stanley, 138 Ga. App. 560, 226 S.E.2d 800 (1976); Stephens v. State, 237 Ga. 259, 227 S.E.2d 261 (1976); Street v. State, 237 Ga. 307, 227 S.E.2d 750 (1976); Copeland v. State, 139 Ga. App. 55, 227 S.E.2d 850 (1976); Patterson v. Professional Resources, Inc., 140 Ga. App. 315, 231 S.E.2d 88 (1976); Wyche v. State, 140 Ga. App. 341, 231 S.E.2d 122 (1976); Walsey v. Lockhart, 140 Ga. App. 348, 231 S.E.2d 124 (1976); McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976); Chaplin v. State, 141 Ga. App. 788, 234 S.E.2d 330 (1977); Orr v. Woodruff-Robinson, Inc., 142 Ga. App. 861, 237 S.E.2d 463 (1977); Hunter v. State, 143 Ga. App. 541, 239 S.E.2d 212 (1977); Seymour v. State, 144 Ga. App. 32, 240 S.E.2d 305 (1977); Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36 (1977); Whitehead v. Great Cent. Ins. Co., 144 Ga. App. 422, 241 S.E.2d 302 (1977); Burnett v. Doster, 144 Ga. App. 443, 241 S.E.2d 319 (1978); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Parker v. State, 145 Ga. App. 205, 243 S.E.2d 580 (1978); Lee v. Southeastern Plumbing Supply Co., 145 Ga. App. 465, 244 S.E.2d 33 (1978); Dozier v. Norris, 241 Ga. 230, 244 S.E.2d 853 (1978); Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978); Smart v. State, 147 Ga. App. 117, 248 S.E.2d 185 (1978); Lake v. Hicks, 147 Ga. App. 175, 248 S.E.2d 236 (1978); Cousins Mtg. & Equity v. Hamilton, 147 Ga. App. 210, 248 S.E.2d 516 (1978); Haga v. Holcombe, 147 Ga. App. 520, 249 S.E.2d 695 (1978); Ewing v. State, 147 Ga. App. 546, 249 S.E.2d 696 (1978); Montford v. State, 148 Ga. App. 335, 251 S.E.2d 125 (1978); Williamson v. Alderman, 148 Ga. App. 297, 251 S.E.2d 153 (1978); Bowen v. State, 151 Ga. App. 166, 259 S.E.2d 169 (1979); Moore v. State, 151 Ga. App. 413, 260 S.E.2d 350 (1979); Thomas v. State, 151 Ga. App. 562, 260 S.E.2d 556 (1979); Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979); McIntyre v. Gulf Oil Corp., 151 Ga. App. 855, 261 S.E.2d 766 (1979); Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825, 264 S.E.2d 296 (1979); Ross v. State, 245 Ga. 173, 263 S.E.2d 913 (1980); Hart v. State, 153 Ga. App. 53, 264 S.E.2d 542 (1980); Walker v. State, 153 Ga. App. 89, 264 S.E.2d 565 (1980); Duke v. State, 153 Ga. App. 129, 265 S.E.2d 73 (1980); Walker v. State, 153 Ga. App. 831, 266 S.E.2d 580 (1980); Rutledge v. State, 245 Ga. 768, 267 S.E.2d 199 (1980); Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980); Taurus Prods., Inc. v. Maryland Sound Indus., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980); State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980); Rogers v. State, 155 Ga. App. 685, 272 S.E.2d 549 (1980); McCroy v. State, 155 Ga. App. 777, 272 S.E.2d 747 (1980); Bohin v. State, 156 Ga. App. 206, 274 S.E.2d 592 (1980); Hanna Creative Enters., Inc. v. Alterman Foods, Inc., 156 Ga. App. 376, 274 S.E.2d 761 (1980); Strickland v. Boswell, 156 Ga. App. 375, 274 S.E.2d 769 (1980); Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980); Graham v. State, 156 Ga. App. 538, 275 S.E.2d 114 (1980); MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980); American Vigorelli, Inc. v. Smith, Phillips & Dipietro, 157 Ga. App. 52, 276 S.E.2d 158 (1981); Bhatia v. West Cash & Carry Bldg. Materials of Savannah, Inc., 157 Ga. App. 145, 276 S.E.2d 656 (1981); Cole v. Jordan, 158 Ga. App. 200, 279 S.E.2d 497 (1981); Harkey v. State, 159 Ga. App. 112, 282 S.E.2d 648 (1981); McRae v. Smith, 159 Ga. App. 19, 282 S.E.2d 676 (1981); Foster v. Waverly Hall United Dev. Corp., 159 Ga. App. 710, 285 S.E.2d 35 (1981); Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981); Montgomery v. Tremblay, 249 Ga. 483, 292 S.E.2d 64 (1982); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982); Neal v. State, 161 Ga. App. 77, 289 S.E.2d 293 (1982); Sams v. State, 162 Ga. App. 118, 290 S.E.2d 321 (1982); Brewer v. State, 162 Ga. App. 228, 291 S.E.2d 87 (1982); Cameron v. Cox, 162 Ga. App. 268, 291 S.E.2d 115 (1982)
Walker v. State, 163 Ga. App. 684, 294 S.E.2d 717 (1982); Freeman v. Gold & White, Inc., 163 Ga. App. 467, 294 S.E.2d 718 (1982); Brannon v. State, 163 Ga. App. 340, 295 S.E.2d 110 (1982); Cooper v. State, 163 Ga. App. 482, 295 S.E.2d 161 (1982); McKenney v. State, 163 Ga. App. 545, 295 S.E.2d 217 (1982); Gray v. Loper, 163 Ga. App. 552, 295 S.E.2d 229 (1982); Burleson v. Jordan, 163 Ga. App. 496, 295 S.E.2d 335 (1982); Readd v. State, 164 Ga. App. 97, 296 S.E.2d 402 (1982); Gilbert v. Colonial Stores Div., 164 Ga. App. 100, 296 S.E.2d 404 (1982); Scott v. Leder, 164 Ga. App. 334, 297 S.E.2d 103 (1982); Snider v. Lavender, 164 Ga. App. 591, 298 S.E.2d 582 (1982); Huttig Sash & Door Co. v. Controlled Bldg. Corp., 165 Ga. App. 99, 299 S.E.2d 411 (1983); High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983); Roper v. State, 251 Ga. 95, 303 S.E.2d 103 (1983); In re T.E.D., 166 Ga. App. 322, 303 S.E.2d 777 (1983); In re S.D.S., 166 Ga. App. 344, 304 S.E.2d 85 (1983); Smith v. State, 251 Ga. 229, 304 S.E.2d 716 (1983); Edelberg v. Porterfield, 166 Ga. App. 383, 304 S.E.2d 739 (1983); Bray v. Carlyle, 167 Ga. App. 208, 306 S.E.2d 89 (1983); In re G.W.H., 168 Ga. App. 845, 310 S.E.2d 573 (1983); O'Neal v. State, 168 Ga. App. 869, 310 S.E.2d 751 (1983); Hill Aircraft & Leasing Corp. v. Planes, Inc., 169 Ga. App. 161, 312 S.E.2d 119 (1983); Thigpen v. Johnson, 169 Ga. App. 410, 313 S.E.2d 121 (1984); Branton v. Stone, 169 Ga. App. 737, 315 S.E.2d 24 (1984); Rosemond v. Prudential Property & Cas. Ins. Co., 170 Ga. App. 189, 316 S.E.2d 541 (1984); Global Assocs. v. Pan Am. Telecommunications, Inc., 170 Ga. App. 116, 316 S.E.2d 562 (1984); Butler v. State, 170 Ga. App. 257, 316 S.E.2d 841 (1984); Trammell v. F & M Bank, 170 Ga. App. 347, 317 S.E.2d 323 (1984); Gaye v. State, 170 Ga. App. 357, 317 S.E.2d 334 (1984); Watts v. State, 170 Ga. App. 614, 317 S.E.2d 654 (1984); New v. State, 171 Ga. App. 392, 319 S.E.2d 542 (1984); Chambers v. DOT, 172 Ga. App. 197, 322 S.E.2d 366 (1984); Davis v. State, 172 Ga. App. 710, 324 S.E.2d 559 (1984); Taylor v. State, 172 Ga. App. 827, 324 S.E.2d 788 (1984); Williams v. State, 173 Ga. App. 207, 325 S.E.2d 783 (1984); Vaughn v. State, 173 Ga. App. 716, 327 S.E.2d 747 (1985); Green v. Gaydon, 174 Ga. App. 796, 331 S.E.2d 106 (1985); Uren v. State, 174 Ga. App. 804, 331 S.E.2d 642 (1985); Bruce v. State, 175 Ga. App. 453, 333 S.E.2d 394 (1985); Dugger v. Danello, 175 Ga. App. 618, 334 S.E.2d 3 (1985); Kloszewski v. State, 177 Ga. App. 153, 338 S.E.2d 741 (1985); State v. Mitchell, 177 Ga. App. 333, 339 S.E.2d 384 (1985); Milford v. State, 178 Ga. App. 792, 344 S.E.2d 505 (1986); Smith v. State, 182 Ga. App. 58, 354 S.E.2d 681 (1987); Decatur Hous. Auth. v. Christian, 182 Ga. App. 270, 355 S.E.2d 764 (1987); Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987); Gentile v. Miller, Stevenson & Steinichen, Inc., 182 Ga. App. 690, 356 S.E.2d 666 (1987); Miller v. State, 183 Ga. App. 563, 359 S.E.2d 359 (1987); Wagner v. Howell, 257 Ga. 801, 363 S.E.2d 759 (1988); Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988); Jones v. State, 185 Ga. App. 595, 365 S.E.2d 153 (1988); In re C.C.B., 188 Ga. App. 46, 372 S.E.2d 6 (1988); Dean v. State, 188 Ga. App. 128, 372 S.E.2d 286 (1988); Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296 (1988); In re Holly, 188 Ga. App. 202, 372 S.E.2d 479 (1988); Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746 (1988); Hunt v. Lee, 190 Ga. App. 403, 379 S.E.2d 215 (1989); Hout v. State, 190 Ga. App. 700, 380 S.E.2d 330 (1989); Brown v. Thomas, 191 Ga. App. 679, 382 S.E.2d 656 (1989); Coffee v. Silver, 195 Ga. App. 247, 393 S.E.2d 58 (1990); National Sur. Corp. v. O'Dell, 195 Ga. App. 374, 393 S.E.2d 504 (1990); Sizemore v. State, 195 Ga. App. 548, 395 S.E.2d 669 (1990); Odom v. State, 196 Ga. App. 293, 396 S.E.2d 27 (1990); Burns v. State, 196 Ga. App. 732, 397 S.E.2d 19 (1990); Thrasher v. State, 197 Ga. App. 593, 398 S.E.2d 850 (1990); Hamm v. Willis, 201 Ga. App. 723, 411 S.E.2d 771 (1991); Dover v. Master Lease Corp., 203 Ga. App. 526, 417 S.E.2d 368 (1992); Walls v. State, 204 Ga. App. 348, 419 S.E.2d 344 (1992); Robbins v. State, 207 Ga. App. 556, 428 S.E.2d 450 (1993); Walton v. State, 207 Ga. App. 787, 429 S.E.2d 158 (1993); Woods v. State, 208 Ga. App. 565, 431 S.E.2d 167 (1993); State v. Cobb, 208 Ga. App. 752, 432 S.E.2d 112 (1993); Alcovy Properties, Inc. v. MTW Inv. Co., 212 Ga. App. 102, 441 S.E.2d 288 (1994), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020); Johnson v. Hardwick, 212 Ga. App. 44, 441 S.E.2d 450 (1994); Leavitt v. State, 264 Ga. 178, 442 S.E.2d 457 (1994); Asbury v. Georgia World Congress Ctr., 212 Ga. App. 628, 442 S.E.2d 822 (1994); Smith v. State, 213 Ga. App. 536, 445 S.E.2d 341 (1994); Effel v. Effel, 213 Ga. App. 623, 445 S.E.2d 373 (1994); Haygood v. State, 221 Ga. App. 477, 471 S.E.2d 552 (1996); Keegan v. State, 221 Ga. App. 487, 472 S.E.2d 107 (1996); Womack v. State, 223 Ga. App. 82, 476 S.E.2d 767 (1996); Hinely v. Hinely, 232 Ga. App. 211, 501 S.E.2d 20 (1998); Shelnutt v. State, 234 Ga. App. 655, 506 S.E.2d 643 (1998); Reid v. Royal Creek Apts. Ltd. Partnership, 239 Ga. App. 536, 521 S.E.2d 210 (1999); Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 530 S.E.2d 800 (2000); Keller v. State, 242 Ga. App. 150, 529 S.E.2d 167 (2000); Baker v. State, 247 Ga. App. 25, 543 S.E.2d 70 (2000); Taylor v. Young, 253 Ga. App. 585, 560 S.E.2d 40 (2002); Strickland v. State, 257 Ga. App. 304, 570 S.E.2d 713 (2002); State v. Huckeba, 258 Ga. App. 627, 574 S.E.2d 856 (2002); In re Estate of Battle, 263 Ga. App. 73, 587 S.E.2d 140 (2003); Harden v. Young, 268 Ga. App. 619, 606 S.E.2d 6 (2004); Moss v. State, 278 Ga. App. 362, 629 S.E.2d 5 (2006); In re Otuonye, 279 Ga. App. 468, 631 S.E.2d 500 (2006); Monterey Cmty. Council v. DeKalb County Planning Comm'n, 281 Ga. App. 873, 637 S.E.2d 488 (2006); Johnson v. State, 283 Ga. App. 524, 642 S.E.2d 170 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); Thornton v. State, 288 Ga. App. 60, 653 S.E.2d 361 (2007); Andrus v. Andrus, 290 Ga. App. 394, 659 S.E.2d 793 (2008); Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008); In the Interest of O.M.J., 297 Ga. App. 20, 676 S.E.2d 421 (2009); Scott v. State, 302 Ga. App. 111, 690 S.E.2d 242 (2010); Michel v. Michel, 286 Ga. 892, 692 S.E.2d 381 (2010); Bryant v. State, 309 Ga. App. 649, 710 S.E.2d 854 (2011); Fulton County Bd. of Tax Assessors v. Fast Evictions, LLC, 314 Ga. App. 178, 723 S.E.2d 461 (2012); Lewis v. State, 293 Ga. 110, 744 S.E.2d 21 (2013); Anderson v. All Am. Quality Foods, 333 Ga. App. 533, 773 S.E.2d 389 (2015); Stanford v. Pogue, 340 Ga. App. 86, 796 S.E.2d 313 (2017); Undisclosed LLC v. State, 302 Ga. 418, 807 S.E.2d 393 (2017); Walia v. Walia, Ga. App. , S.E.2d (July 30, 2020); Cross v. State, Ga. , S.E.2d (Aug. 10, 2020).
Constitutionality
Subsections (g) and (i) do not deny due process.
- Provisions of subsections (g) and (i) of O.C.G.A. § 5-6-41, relating to preparation of a transcript of proceedings from recollection or by stipulation, do not deny due process of law. Wall v. Citizens & S. Bank, 247 Ga. 216, 274 S.E.2d 486 (1981).
Method of perfecting record under subsection (g) is not so inadequate as to deny meaningful appeal. Hunt v. State, 133 Ga. App. 548, 211 S.E.2d 601 (1974).
Standing to challenge.
- Defendant who did not request that a transcript be made did not have standing to challenge the constitutionality of O.C.G.A. § 5-6-41 by alleging that the section denied the defendant equal protection of the law in that only a defendant who can afford to have the defendant's misdemeanor trial proceedings transcribed has a right to a transcript under subsection (j) of § 5-6-41 while an indigent defendant may have the defendant's misdemeanor trial proceedings transcribed only at the discretion of the trial court. Williams v. State, 254 Ga. 690, 333 S.E.2d 613 (1985).
Judicial Discretion
Reference in subsection (b) to discretion concerns terms judge may require for reporting and transcribing, but not to a party's mandatory right to have proceedings reported at own expense. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974).
Provisions of subsection (c) are merely discretionary and not mandatory, and the trial judge is not obligated to have the case reported. Liberty Loan & Thrift Corp. v. Meeks, 115 Ga. App. 846, 156 S.E.2d 172 (1967); Gunter v. National City Bank, 239 Ga. 496, 238 S.E.2d 48 (1977).
Discretion granted the trial court by subsection (f) of O.C.G.A. § 5-6-41 vests the court with a necessary control over the designation and transmittal of both record and transcript. Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 381 S.E.2d 750, cert. denied, 191 Ga. App. 923, 381 S.E.2d 750 (1989).
When a criminal defendant contended that the prosecutor's affidavit conflicted with the affidavits of the defendant's trial counsel, the trial court's adoption of the prosecutor's affidavit was dispositive, and was not subject to review. Smith v. State, 260 Ga. 274, 393 S.E.2d 229 (1990).
Recording of evidence at interlocutory hearing or subsequent contempt hearing.
- It is not incumbent upon the trial judge to arrange for an official reporter to take down evidence at an interlocutory hearing or subsequent contempt hearing; the law does not mandate that every civil case be reported. Savage v. Savage, 234 Ga. 853, 218 S.E.2d 568 (1975).
Felony Cases
State must have transcript of evidence prepared in all felony cases.
- Under Ga. L. 1965, p. 18, § 10 and § 17-8-5, it was the duty of the state in all felony cases to have a transcript of the evidence and proceedings reported and prepared and, after a guilty verdict had been returned, to file a transcript. Parrott v. State, 134 Ga. App. 160, 214 S.E.2d 3 (1975), overruled on other grounds, Mathis v. State, 147 Ga. App. 148, 248 S.E.2d 212 (1978).
State function to prepare transcript.
- It is not the function of courts to prepare transcript of criminal trial; that is the function of the state, as required by subsection (a). Knowles v. State, 156 Ga. App. 389, 274 S.E.2d 590 (1980), rev'd on other grounds, 247 Ga. 218, 274 S.E.2d 468 (1981).
All testimony and proceedings except argument of counsel must be reported. Aiken v. State, 226 Ga. 840, 178 S.E.2d 202 (1970), cert. denied, 401 U.S. 982, 91 S. Ct. 1216, 28 L. Ed. 2d 334 (1971).
Construing Ga. L. 1965, p. 18, § 10 (see O.C.G.A. § 5-6-41) with former Code 1933, § 27-2401 (see O.C.G.A. § 17-8-5), it would appear that in a felony case all testimony and proceedings must be reported, except argument of counsel. Graham v. State, 153 Ga. App. 658, 266 S.E.2d 316, rev'd on other grounds, 246 Ga. 341, 271 S.E.2d 627 (1980).
When objection made to argument of state's counsel, upon motion of accused, transcript shall include argument. When an objection is made to argument of state's counsel, and upon motion of accused, the court shall require that the transcript of argument be made. Aiken v. State, 226 Ga. 840, 178 S.E.2d 202 (1970), cert. denied, 401 U.S. 982, 91 S. Ct. 1216, 28 L. Ed. 2d 334 (1971).
When trial transcript is not available to appellant, the appellant is effectively denied the appellant's right to appeal. Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973).
State's failure to file correct transcript.
- When the court reporter worked over 100 hours and was unable to decipher inaudible tapes, and the trial court and counsel were unable to reconstruct record, failure of state to file correct transcript, through no fault of the appellant, effectively deprives the defendant of the defendant's right of appeal. Knowles v. State, 156 Ga. App. 389, 274 S.E.2d 590 (1980), rev'd on other grounds, 247 Ga. 218, 274 S.E.2d 468 (1981).
Failure of state to file transcript, or correct transcript, even when caused, as here, by the state's inability to file it (and not by appellant's fault), effectively denies appellant the appellant's right to appeal because a complete and correct transcript of the appellant's trial is not available to the appellant. Parrott v. State, 134 Ga. App. 160, 214 S.E.2d 3 (1975).
Defendant failed to show prejudice.
- Defendant failed to demonstrate that the loss of two videotapes had harmed the defendant or precluded the appellate court from reviewing any of the issues raised on appeal with regard to the defendant's convictions for multiple offenses relating to the sexual molestation and exploitation of two minors. Significantly, although the videotapes were missing, the parties had stipulated to the contents of the tapes at the bench trial and to the proffered testimony of the minor victims. Mitchell v. State, 289 Ga. App. 55, 656 S.E.2d 145 (2007), cert. dismissed, No. S08C0770, 2008 Ga. LEXIS 499 (Ga. 2008).
Although the habeas court erred in resting the court's judgment on procedural default, the denial of habeas relief was affirmed because the petitioner could not show from the record that the petitioner was not represented by counsel and that a pro se notice of appeal was legally valid and acted to deprive the trial court of jurisdiction to try the petitioner. Tolbert v. Toole, 296 Ga. 357, 767 S.E.2d 24 (2014).
Misdemeanor Cases
Provisions of subsection (b) of O.C.G.A. § 5-6-41 are not mandatory and the trial court is not obligated to have a misdemeanor trial case reported. Frasier v. State, 160 Ga. App. 812, 287 S.E.2d 669 (1982).
Whether transcript shall be prepared in misdemeanor case initially lies within discretion of trial court. Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
It lies within the discretion of the trial court to grant or deny an indigent the transcription of the trial of a misdemeanor. Hughes v. State, 168 Ga. App. 413, 309 S.E.2d 409 (1983).
In misdemeanor cases, it is discretionary with the trial court as to whether the proceedings are transcribed. Thus, absent a demand for a transcript, prepared at the request of the demanding party, the reporting of such a case is not required as a matter of law. Ward v. State, 188 Ga. App. 372, 373 S.E.2d 65 (1988).
Claim to a free transcript.
- In misdemeanor cases, it is within the trial court's discretion to require the reporting and transcribing of the evidence and proceedings by a court reporter, but two factors need to be considered on the record in evaluating an indigent defendant's claim to a free transcript: (1) the transcript's value in connection with the defendant's trial or appeal; and (2) the accessibility of other means that would fulfill the same functions as a transcript. Failure to make that evaluation on the record is not a proper exercise of a trial court's discretion. Stanley v. State, 267 Ga. App. 379, 599 S.E.2d 331 (2004).
Reporting of misdemeanor not required absent demand by party willing to bear expense of preparation. Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
Indigent defendant charged with misdemeanor may request transcription.
- When a trial court, sua sponte, has not ordered such, an indigent defendant, on trial on a misdemeanor charge, must make a request or motion to the trial court that evidence and proceedings be reported and transcribed. Parker v. State, 154 Ga. App. 668, 269 S.E.2d 518 (1980).
Defendant in misdemeanor case is not denied transcript absent demand.
- Absent demand by the defendant in a misdemeanor case for preparation of a transcript at the defendant's own expense under subsection (j), the defendant has not been denied a transcript of the defendant's misdemeanor conviction. Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
In criminal misdemeanor proceedings, the trial court did not err in accepting the defendant's waiver of takedown; because the defendant did not elect to have the proceedings taken down, whether the proceedings were reported was a matter within the trial court's discretion under O.C.G.A. § 5-6-41(b), and the defendant failed to use the remedy provided under § 5-6-41(g), which provided a means of using the parties' recollection to reconstruct the proceedings. Johnson v. State, 280 Ga. App. 882, 635 S.E.2d 267 (2006).
Trial court did not err by failing to order transcription of a defendant's misdemeanor proceeding without ascertaining the defendant's indigence status or obtaining a waiver. Under O.C.G.A. § 5-6-41(b), the defendant had no right to a transcript in a misdemeanor case, and neither the defendant nor defense counsel requested transcription at defendant's own expense under § 5-6-41(j). Bagley v. State, 298 Ga. App. 513, 680 S.E.2d 565 (2009).
Judge may assign cost of transcript to defendant making request.
- Determination that the defendant should pay the cost of reporting in misdemeanor cases when defense counsel requests proceedings to be recorded is within the sound discretion of the trial judge to prescribe terms by which misdemeanor cases are to be reported under subsection (b). Godwin v. State, 138 Ga. App. 131, 225 S.E.2d 723 (1976).
Court must make sure reporter is available.
- When the defendant in a misdemeanor case asks that the case be recorded at the defendant's expense, the court must make sure that the court reporter is available to comply with the request. Thompson v. State, 240 Ga. 296, 240 S.E.2d 87 (1977).
Defendant in misdemeanor case need not make advance arrangements for court reporter if the defendant desires that the trial be recorded. Thompson v. State, 240 Ga. 296, 240 S.E.2d 87 (1977).
Defendant need not ensure prior to trial that reporter is in attendance.
- Subsection (j) of Ga. L. 1965, p. 18, § 10 (see O.C.G.A. § 5-6-41) and former Code 1933, § 24-3102 (see O.C.G.A. § 15-14-3) did not put a duty upon a defendant who was charged with a misdemeanor to ensure prior to trial that the court reporter is complying with the reporter's statutory duty to attend court sessions. When a defendant was facing a potential criminal conviction with possible resulting fine or imprisonment, such a duty cannot be read into these statutes. Thompson v. State, 240 Ga. 296, 240 S.E.2d 87 (1977).
Absence of transcript of hearing in misdemeanor case is attributable to complaining party. Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
Trial judge's decision not to prepare narrative not subject to review.
- With regard to a defendant's attempt to appeal the sufficiency of the evidence with regard to the defendant's convictions for theft of services, a misdemeanor, and two counts of obstruction of a police officer, because the parties could not agree on a narrative, the trial judge's decision that no narrative would be created was final and not subject to review. Williams v. State, 287 Ga. App. 851, 652 S.E.2d 803 (2007).
Hearing on misdemeanor charge.
- Defendant must request that a hearing on a misdemeanor charge be reported and transcribed, unless the trial court on the court's own motion orders that this be done. Gilbert v. City of Manchester, 204 Ga. App. 422, 419 S.E.2d 487, cert. denied, 204 Ga. App. 921, 419 S.E.2d 487 (1992).
Impact of transcript's absence in misdemeanor case.
- Absence of transcript on appeal in misdemeanor case requires judgment below be affirmed. Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
Reporting of Voir Dire
Defendant in felony case is entitled to have voir dire reported or transcribed and is harmed by failure to do so. Graham v. State, 153 Ga. App. 658, 266 S.E.2d 316 (1980).
Voir dire must be reported under subsection (d).
- Any objection or motion in course of voir dire and court's ruling thereon must be reported under subsection (d), as once ruling of court is made, it would be a matter which may be raised on appeal. State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980); Conley v. State, 157 Ga. App. 166, 276 S.E.2d 677 (1981).
Voir dire examination regarding jurors' feelings about death penalty.
- Failure to record voir dire examination of prospective jurors as to the jurors' feelings about imposing the death penalty in a case in which the sentence of death is imposed, is reversible error. Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975).
Entire voir dire is not required to be reported in all felony cases. Meier v. State, 190 Ga. App. 625, 379 S.E.2d 588 (1989).
When defendant did not cite any specific objection made during voir dire or claim any specific harm from the lack of transcription, an omission could not be reversible error. Meier v. State, 190 Ga. App. 625, 379 S.E.2d 588 (1989).
When defendant made a tactical decision not to object in open court during voir dire examinations, there was no requirement that the reporter record the voir dire examination. Russell v. State, 181 Ga. App. 624, 353 S.E.2d 820 (1987).
Failure to request reporting of voir dire not error.
- Counsel's failure to request that voir dire be reported in a defendant's criminal trial was not error or ineffectiveness as there was no requirement that the entire jury selection be reported and made part of the record in a non-death-penalty felony case; the defendant did not show any prejudice as a result. Adams v. State, 322 Ga. App. 782, 746 S.E.2d 261 (2013).
Unrecorded voir dire.
- When voir dire is not recorded, the complaining party has the duty of complying with the procedure for reconstructing the record. Denny v. State, 226 Ga. App. 432, 486 S.E.2d 417 (1997).
Defendant's contention that possible error occurred during voir dire or that defense counsel may have been ineffective and that, because of the lack of a record, the defendant would never know if there was error was not a sufficient basis to require a new trial. Primas v. State, 231 Ga. App. 861, 501 S.E.2d 28 (1998).
Although the defendant asserted that because voir dire was not transcribed, it was impossible to determine whether any errors occurred therein, so the judgment should have been reversed or the case should have been remanded to the trial court pursuant to O.C.G.A. § 5-6-41(f), the appellate court found that the general unspecified hope of reversible error during voir dire did not win a new trial on the ground that a record should have been made so as to accommodate a search for error now buried in unrecorded history. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010).
Trial court did not abuse the court's discretion in denying the defendant's motion for a change of venue because although the court reporter transcribed the motion for change of venue and the trial court's ruling, the actual questions and answers of the prospective jurors were not reported, and defense counsel made no motion at that time to include the answers in the record or to have the answers reconstructed for the record; since voir dire was not transcribed, it was assumed that the jurors who were not excused for cause did not have such fixed opinions that the jurors could not be impartial judges of the defendant's guilt. Walden v. State, 289 Ga. 845, 717 S.E.2d 159 (2011).
Defendant was not entitled to a new trial due to the fact that voir dire was not recorded under O.C.G.A. § 5-6-41(a) because: (1) the defendant failed to request that voir dire be transcribed; (2) O.C.G.A. § 5-6-41(a) did not require that voir dire be reported in all felony cases; (3) while it was mandatory that voir dire be made part of the record in cases imposing the death penalty, the death penalty was not imposed; (4) a review of the existing trial transcript indicated that one of the sitting jurors was arrested on outstanding traffic-related charges, but that juror was replaced with one of the alternates prior to jury deliberations; and (5) merely asserting a general unspecified hope of reversible error during voir dire was insufficient to warrant a new trial on the ground that a transcript of the proceeding should have been made so as to accommodate a search for error now buried in unrecorded history. McFarlane v. State, 291 Ga. 345, 729 S.E.2d 349 (2012).
Content of Transcript
Differences from required content of transcript under prior law.
- Under old law, transcript on appeal contained only evidence and did not contain any objections, colloquies, and various rulings of the court on matters arising during trial. The Appellate Practice Act changed this procedure to require that record be made of objections and rulings of court which may be raised on appeal. State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980).
Transmittal of portion of record.
- Appellant may choose to have only a portion of a record transmitted to the Court of Appeals, but this does not relieve the appellant from the obligation to demonstrate error by the record. Jordan v. Johnson, 223 Ga. App. 875, 479 S.E.2d 175 (1996).
Inclusion in transcript of all proceedings which may be questioned on appeal.
- Subsection (d) contemplates that all proceedings on trial which may be called in question on appeal (including all colloquies, arguments to jury, objections and rulings of court) shall be included in a written transcript of proceedings in the trial court. Palmer v. Stevens, 115 Ga. App. 398, 154 S.E.2d 803 (1967).
Failure to designate sufficient portions of record for review.
- Father failed to support his contentions that the trial court erred in awarding child support payments to the mother because he failed to designate sufficient portions of the record for the appellate court to review as required by O.C.G.A. § 5-6-41. Kennedy v. Kennedy, 309 Ga. App. 590, 711 S.E.2d 103 (2011).
Transcript record failed to include continuance request.
- Because an appellant failed to include in the transcript record appellant's request for a continuance, as well as nothing regarding the nature of this request or the parameters of the trial court's denial of this request, the appellate court refused to hold that the trial court erred in declining to grant a continuance. Shamsai v. Coordinated Props., Inc., 259 Ga. App. 438, 576 S.E.2d 901 (2003).
Issues raised in brief but not incorporated in transcript.
- Court of Appeals cannot consider questions with respect to proceedings on trial which are related in party's brief but are not incorporated in properly authenticated transcript as required by section. R. & S. Mgt. Co. v. Huntley, 119 Ga. App. 712, 168 S.E.2d 626 (1969).
When appellant failed to submit a proposed transcript to the trial judge for approval, and instead, sought to delegate the entire preparation of the transcript to the trial court, the trial court correctly denied the appellant's motion asking the court to reconstruct the transcript as the duty does not lie with the court in this respect. Machiz v. Machiz, 169 Ga. App. 91, 311 S.E.2d 538 (1983).
Incorrect or Incomplete Transcripts
Purpose of subsection (f).
- Subsection (f) of O.C.G.A. § 5-6-41 is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Wigley v. State, 194 Ga. App. 7, 389 S.E.2d 769.
Subsection (f) of O.C.G.A. § 5-6-41 is not an instrument for supplying fatal deficiencies after the fact. Nobles v. Prevost, 221 Ga. App. 594, 472 S.E.2d 134 (1996).
Official or adequately reconstructed transcript required.
- Without access either to an official transcript or an adequately reconstructed transcript, a court cannot effect a proper disposition of the issues raised on appeal. Effel v. Effel, 207 Ga. App. 809, 428 S.E.2d 809 (1993).
Reconstruction of lost transcript proper.
- In a mother and son trial for the murder of the son's wife, after the first day's transcript was lost, the trial court properly complied with O.C.G.A. § 5-6-41(f) and (g) in reconstructing the transcript with testimony from all five original witnesses, the Clerk of Court, and the only living prosecutor. Defendants could not refuse to participate in the reconstruction and then complain that the reconstruction was inadequate. Bamberg v. State, 308 Ga. 340, 839 S.E.2d 640 (2020).
Record reconstruction.- Trial court complied with the record-reconstruction requirements because the judge who presided over the defendant's trial presided over the record-reconstruction hearing, and the prosecutor from the defendant's trial represented at the hearing that the admitted substitute exhibits accurately reflected the missing trial exhibits, without objection or presentation of conflicting evidence by the defendant; thus, the record was sufficiently complete for appellate review. Cross v. State, Ga. , S.E.2d (Sept. 8, 2020).
When transcript or record is incomplete, burden is on complaining party to have record completed in trial court, and when this is not done, there is nothing for the appellate court to review. Zachary v. State, 245 Ga. 2, 262 S.E.2d 779 (1980); Smith v. State, 160 Ga. App. 26, 285 S.E.2d 749 (1981); Howe v. State, 250 Ga. 811, 301 S.E.2d 280 (1983); Ivory v. State, 199 Ga. App. 283, 405 S.E.2d 90, cert. denied, 199 Ga. App. 906, 405 S.E.2d 90 (1991) See Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994); Forehand v. State, 267 Ga. 254, 477 S.E.2d 560 (1996), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Ney v. State, 227 Ga. App. 496, 489 S.E.2d 509 (1997), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Floyd v. State, 227 Ga. App. 873, 490 S.E.2d 542 (1997); Pope v. State, 228 Ga. App. 897, 494 S.E.2d 345 (1998); Harris v. State, 230 Ga. App. 403, 496 S.E.2d 277 (1998); Eason v. State, 249 Ga. App. 738, 549 S.E.2d 532 (2001).
Burden is on complaining party to have record and transcript completed in trial court. State v. Everett, 155 Ga. App. 162, 270 S.E.2d 345 (1980).
When the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of O.C.G.A. § 5-6-41. Page v. State, 159 Ga. App. 344, 283 S.E.2d 310 (1981).
When the defendant's opening statement was not recorded and the defendant admits the defendant's objection to the trial court's alleged limitation of the defendant's statement was not perfected, there is nothing for the Court of Appeals to review on appeal. The complaining party bears the burden of having the record completed in the court below. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983).
When there is nothing in the record or transcript to support the defendant's contention that a prior ruling of the trial court relieved the defendant of the duty of making a written request to charge on a lesser included offense in order to preserve the issue on appeal, there is nothing for the appellate court to review. Howe v. State, 250 Ga. 811, 301 S.E.2d 280 (1983).
When the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of O.C.G.A. § 5-6-41. When this is not done, there is nothing for the appellate court to review. Campbell v. Crumpton, 173 Ga. App. 488, 326 S.E.2d 845 (1985).
When the defendant pled guilty to charges of driving with a suspended driver's license, possession of marijuana, giving a false name to a police officer, failing to maintain no-fault insurance, and displaying an improper license plate, for which the trial court sentenced the defendant to 12 months in prison, four months to be served, and fined the defendant $1,930, and the defendant filed a timely appeal from the trial court's judgment on the defendant's plea alleging that the trial court erred by accepting the defendant's plea and entering judgment thereon because the guilty plea was not an informed, knowledgeable, and voluntary decision and the defendant was not aware of the relevant circumstances and likely consequences of the defendant's decision, the entire record, as designated by the defendant to be included on appeal, fails to show that the defendant was cognizant of all the rights the defendant was waiving and the possible consequences of the defendant's plea, and since the state failed to take any action to correct the alleged omission or to fill a silent record by use of extrinsic evidence affirmatively showing the guilty plea was knowing and voluntary, the state failed to carry the state's burden, and the trial court erred by accepting the defendant's plea and entering judgment thereon. Agerton v. State, 191 Ga. App. 633, 382 S.E.2d 417 (1989).
Burden is on the complaining party to have the record completed in the trial court in accordance with provisions of subsection (f) of O.C.G.A. § 5-6-41. Massengale v. Moore, 194 Ga. App. 328, 390 S.E.2d 439 (1990).
When the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of O.C.G.A. § 5-6-41 and when there was no amendment or supplement to the record to reflect the necessary facts pursuant to subsection (f) or (g) and since there was no stipulation in the record as to facts pursuant to subsection (i), the defendant did not carry the burden to show by the record the facts necessary to prove a claim of racial discrimination. Thomas v. State, 208 Ga. App. 367, 430 S.E.2d 768 (1993).
Court of appeals was barred from considering a letter allegedly constituting a request for a hearing on a summary judgment motion, as the letter, which was attached to the appellate brief, was not part of the record and, thus, was not properly before the court. Thomas v. Schouten, 210 Ga. App. 244, 435 S.E.2d 746 (1993).
Defendant's allegation that the state committed prosecutorial misconduct in the form of improper comments it made during closing argument could not be reviewed as the incomplete transcript did not allow the reviewing court to review the contention; thus, reversal of the defendant's conviction could not be ordered since the defendant had the obligation of providing a sufficient transcript for appellate review. McFarlin v. State, 259 Ga. App. 838, 578 S.E.2d 546 (2003).
Burden is on an appealing defendant to ensure that the record includes the issue upon which the defendant seeks review as well as the lower court's ruling on such issue, and when the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm; thus, when the record in a case of child molestation and other crimes did not reveal a final ruling denying defendant's motion to admit evidence of the victims' prior molestation and the defendant alleged that the ruling was given in an unrecorded bench conference, the issue of whether the trial court erred in allegedly excluding such evidence could not be determined on appeal and the trial court's action was presumed correct. Pollard v. State, 260 Ga. App. 540, 580 S.E.2d 337 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Quality of a tape-recording of a termination-of-parental-rights hearing was so poor that the court reporter could not understand much of what was said; as it was the mother's burden to provide the transcript of the hearing, because the transcript was inadequate to address a claim of error, the appellate court assumed the trial court's ruling was correct. In the Interest of C.T.M., 278 Ga. App. 297, 628 S.E.2d 713 (2006).
Defendant did not complain of a missing transcript or refer to a hearing in a motion for new trial, thus, even though the state was not able to locate a transcript of the hearing, there was no basis to remand the case. Butts v. State, 279 Ga. App. 28, 630 S.E.2d 182 (2006).
Judgment in favor of the defendants in a medical malpractice suit was upheld on appeal because the plaintiffs failed to provide an adequate record on appeal so as to allow the appellate court to address the alleged errors committed by the trial court; as a result, the trial court's rulings were presumed correct. Steele v. Atlanta Maternal-Fetal Med., P.C., 283 Ga. App. 274, 641 S.E.2d 257 (2007).
Domestic violence defendant's complaint that the grand jury was tainted by an outside influence that prejudiced the grand jury by giving the grand jurors a general presentation on domestic violence could not be reviewed because the defendant failed to include the transcript of the hearing on the defendant's motion to quash the indictment. Pierce v. State, 301 Ga. App. 167, 687 S.E.2d 185 (2009), cert. denied, No. S10C0549, 2010 Ga. LEXIS 244 (Ga. 2010).
Trial court did not err in ruling that the transcript of the hearing on a manufacturer's motion for summary judgment accurately portrayed what had occurred at the hearing because a driver had the burden to seek corrective action under O.C.G.A. § 5-6-41(f). Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190 (2011).
In a criminal trial, the defendants failed in the defendants' claim that a recording of a witness interview was erroneously admitted due to a failure to lay a foundation for the admission of prior consistent or inconsistent statements because, inter alia, the defendants did not meet the defendants' burden, under O.C.G.A. § 5-6-41, to complete the record to show what part of the interview was played for the jury. White v. State, 315 Ga. App. 54, 726 S.E.2d 548 (2012).
Although it appeared from discussion during a conference on the requests for jury charges that the second defendant did submit some additional requests on or about May 24, 2012, no such requests appeared in the record before the supreme court, and the second defendant did not attempt to supplement the record with any additional jury instructions filed after May 17, 2012. Because the second defendant failed to pursue the available statutory provisions to ensure that the record before the supreme court reflected that which the second defendant contended occurred, the supreme court was prevented from considering the second defendant's assertion that the trial court erred in rejecting the second defendant's requests for jury instructions. Daniels v. State, 302 Ga. 90, 805 S.E.2d 80 (2017), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Failure to provide transcript.
- Judgment ordering a writ of possession and past rent due was presumed to be correct because a tenant did not file a transcript of the hearing or attempt to recreate the record. Hughley v. Habra, 277 Ga. App. 138, 625 S.E.2d 531 (2006).
Because no transcript of a lower court's proceedings was submitted on appeal and no attempt was made to recreate the record as provided for in O.C.G.A. § 5-6-41(g), (i), a tenant's appeal could not be considered. Creagh v. Federal Nat'l Mortg. Assoc., 277 Ga. App. 614, 627 S.E.2d 813 (2006).
Without a hearing transcript, the appeals court was unable to review an LLC's claim that the trial court erred by failing to give the court an opportunity to amend a defective answer, and whether it was error to deny the LLC an evidentiary hearing on the amount of damages owed, as the court could not verify the LLC's claim that the trial court did not admit evidence on the issue of damages. Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 634 S.E.2d 188 (2006).
When a wife in a divorce case claimed that the trial court had improperly heard the case without a jury, but the wife had failed to provide a transcript under O.C.G.A. § 5-6-41, the court would presume that the trial court faithfully and lawfully performed the court's duties and would conclude that the case was properly heard without a jury. Fine v. Fine, 281 Ga. 850, 642 S.E.2d 698 (2007).
In the absence of a transcript in a divorce case, the court had to assume that the evidence adduced during the bench trial was sufficient to support the trial court's evidentiary rulings regarding the wife's enumerations of error. Fine v. Fine, 281 Ga. 850, 642 S.E.2d 698 (2007).
Contempt finding against a former spouse relating to a property distribution portion of a divorce decree had to be affirmed because the former spouse failed to secure the transmittal to the appellate court of a transcript of the contempt hearing as required by O.C.G.A. § 5-6-41(c). Morris v. Morris, 284 Ga. 748, 670 S.E.2d 84 (2008).
Because the defendant did not supplement the transcript, the defendant's claim that the trial court erred by failing to take curative action when the prosecutor allegedly made a future dangerousness remark during closing argument provided nothing for the appellate court to review. Parrott v. State, 330 Ga. App. 801, 769 S.E.2d 549 (2015), cert. denied, No. S15C1009, 2015 Ga. LEXIS 379 (Ga. 2015).
New trial warranted due to failure to include ex parte communication with jury.
- In a medical malpractice case, the plaintiffs were entitled to a new trial because the communication between the court and the jury was not disclosed to the plaintiffs or the plaintiffs' counsel until after the verdict, the note and response were not made a part of the record, recollections differed as to the nature and timing of the communication, and it was impossible for the appellate court to determine if a defense verdict would have been demanded regardless of the effect of the communication on the jury. Phillips v. Harmon, 328 Ga. App. 686, 760 S.E.2d 235 (2014), aff'd in part and rev'd on other grounds, 297 Ga. 386, 774 S.E.2d 596 (2015), vacated on other grounds, 335 Ga. App. 450, 780 S.E.2d 914 (2015).
In a medical malpractice case in which the trial judge received and answered a note from the jury without advising the parties or counsel, the plaintiffs were entitled to a new trial because the plaintiffs' substantial rights to be present under due process and Ga. Const. 1983, Art. I, Sec. I, Para. XII, had been infringed. Plaintiffs were unable to demonstrate harm because the note was destroyed and the trial judge and jurors disagreed on the note's contents, preventing supplementing the record under O.C.G.A. § 5-6-41. Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015).
Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to subsection (f) of O.C.G.A. § 5-6-41. Nixon v. Rosenthal, 214 Ga. App. 446, 448 S.E.2d 45 (1994).
Duty of defendant.
- It is the duty of the defendant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings, and when the transcript is necessary and the defendant omits the transcript from the record on appeal, the appellate court must assume that the judgment below was correct and affirm. Magnolia Court Apts., Inc. v. City of Atlanta, 249 Ga. App. 6, 545 S.E.2d 643 (2001).
When issue raised can be resolved without resort to omitted portion.
- When issue raised in omitted portions of transcript can be resolved by looking to remaining portions of transcript, it cannot be said that anything material to the appellant has been omitted from the record on appeal. Zachary v. State, 245 Ga. 2, 262 S.E.2d 779 (1980).
Trial court found no evidence that the exclusion of emails from the former judge and clerk in the case from the record below was a mistake or oversight by the parties or the court and also found that inclusion of the documents was not necessary in order to make the record speak the truth; after review of the documents, the court deferred to the trial court's factual determination as to the documents. Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018), cert. denied, No. S18C1054, 2018 Ga. LEXIS 769 (Ga. 2018).
Trial court has necessary control over designation and transmittal of both record and transcript. Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60, 198 S.E.2d 690 (1973).
Subsection (f) allows trial court to retain some control over record on appeal in certain instances, such as when, in the court's opinion, the appellate court could not properly understand or pass on the court's rulings unless the appellate court had before it material omitted from the appeal in first instance but deemed necessary to a decision on points of error raised by the litigants. G.E.C. Corp. v. Southern Fabricators, Inc., 122 Ga. App. 452, 177 S.E.2d 497 (1970).
Defendant was not entitled to remand for a second hearing on reconstructing a transcript when procedures followed by the trial court at the first remand hearing complied with the provisions of subsection (f) of O.C.G.A. § 5-6-41. Carr v. State, 267 Ga. 547, 480 S.E.2d 583, cert. denied, 522 U.S. 921, 118 S. Ct. 313, 139 L. Ed. 2d 242 (1997).
Amendments to correct typographical errors authorized.
- Trial court was authorized by subsection (f) of O.C.G.A. § 5-6-41 to accept amendments to the transcript in order to correct typographical errors. Bates v. State, 228 Ga. App. 140, 491 S.E.2d 200 (1997).
Remedy in trial court.
- When the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the defendant's remedy is in the trial court, not the appellate court. Epps v. State, 168 Ga. App. 79, 308 S.E.2d 234 (1983).
Procedure appropriate in felony case.
- When a portion of the court reporter's tapes of a felony trial were deleted, the trial court did not err in following the prescribed procedure for supplementation of the trial transcript even though the defendant did not participate in the process. Stubbs v. State, 220 Ga. App. 106, 469 S.E.2d 229 (1996); Turner v. State, 226 Ga. App. 348, 486 S.E.2d 639 (1997).
Factual and legal findings included in record at trial judge's direction.
- When trial judge directs that the clerk include findings of fact and conclusions of law in its correction of record, the appellate court may properly consider such corrections made by the trial court. Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974).
Transcript omitting charge.
- In civil case where appellant has not shown that exceptions were made to the charge, the appellant did not seek a hearing in the trial court to attempt to show that exceptions to charge were timely made, and all that is missing in transcript is charge of court and exceptions made thereto, the judgment will not be reversed because of deficiencies in the transcript. Albea v. Jackson, 236 Ga. 690, 225 S.E.2d 46 (1976).
Affidavit of party's counsel does not meet requirements of section regarding correcting record for appeal. Henderson v. Lewis, 128 Ga. App. 28, 195 S.E.2d 289 (1973).
Transcript omitting bench conferences.
- When the defendant argued on appeal that the bench conferences at the defendant's criminal trial were not transcribed, but the defendant failed to follow the O.C.G.A. § 5-6-41 procedure for completing the transcript, the defendant was unable to show error or harm regarding the bench conferences. Morrison v. State, 256 Ga. App. 23, 567 S.E.2d 360 (2002).
One-paragraph statement in affidavit form by the prosecuting attorney was an insufficient substitute for a transcript or recording of an alleged in camera conference during trial. McGraw v. State, 199 Ga. App. 389, 405 S.E.2d 53, cert. denied, 199 Ga. App. 906, 405 S.E.2d 53 (1991).
Court assumes transcript correct.
- When the record discloses no effort to have the transcript corrected, the appellate court will assume that the transcript is correct. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 168 Ga. App. 202, 308 S.E.2d 547 (1983).
Transcript correction not allowed.
- Trial court properly dismissed the defendant's motion to correct the transcript of the defendant's trial for murder and aggravated assault, which alleged that the transcript was altered to suppress exculpatory evidence; other than the defendant's assertion that conflicting testimony evidenced a defective transcript, there was nothing to indicate that the detective's testimony was altered during transcription. Wright v. State, 275 Ga. 788, 573 S.E.2d 361 (2002).
Appellee's rights when appellant designates matter to be omitted.
- Even if the appellant has designated a relevant portion of the record on appeal for omission, the appellee is entitled, under O.C.G.A. § 5-6-42, to file the appellee's own designation of record to correct the deficiency and, the appellee also has a remedy for correction of the record under subsection (f) of O.C.G.A. § 5-6-41, even after it has been transmitted to the Court of Appeals. In the absence of any attempt on the appellee's part to exercise these remedies, the Court of Appeals must assume that the record before the court is complete in all relevant respects. Boats for Sail v. Sears, 158 Ga. App. 74, 279 S.E.2d 314 (1981).
Transcript of district attorney's closing argument.
- Court did not rule on the defendant's claim of error that no transcript was made of the district attorney's alleged prejudicial closing argument, since O.C.G.A. § 17-8-5 does not require that such a transcript be made and there was nothing in the record to show that the defendant requested that one be made. Ford v. State, 160 Ga. App. 707, 288 S.E.2d 39 (1981).
When closing arguments were not reported because the parties could not agree as to what had transpired, the court entered an order reciting the facts based on its recollection, which recitation was final. Bailey v. State, 200 Ga. App. 621, 409 S.E.2d 230 (1991).
Claim of improper closing argument by codefendant's counsel was deemed abandoned when the closing argument was not transcribed, and the defendant did not supplement the record with a stipulation pursuant to subsection (g) of O.C.G.A. § 5-6-41. Cox v. State, 242 Ga. App. 334, 528 S.E.2d 871 (2000).
Jury instruction corrected by a trial transcript amended to correct a typographical error gave an accurate statement of the applicable law and was not error. Clanton v. State, 208 Ga. App. 669, 431 S.E.2d 453 (1993).
Motion to perfect record not proper.
- Defendant's filing of a "motion to perfect the record," offering the testimony of a witness as to what transpired during a portion of the trial, was not a proper vehicle for perfecting the record pursuant to O.C.G.A. § 5-6-41. Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994).
Supplementation of record after appellate court renders decision.
- Once the appellate court renders a decision, O.C.G.A. § 5-6-48, under which the action originates in the appellate court, becomes the exclusive method for supplementing the record. Therefore, the appellate court's refusal to entertain, on motion for rehearing under subsection (f) of O.C.G.A. § 5-6-41, under which the action originates in the trial court, the supplementation of the record was not error. However, in holding that what the defendant wore at trial, not shown in the record other than a reference to "prison garb," was new evidence and not subject to subsection (f), the appellate court erred. State v. Pike, 253 Ga. 304, 320 S.E.2d 355 (1984).
Subsection (f) of O.C.G.A. § 5-6-41 is not to be used after rendition of an appellate court's decision as a vehicle to secure the grant of a motion for reconsideration or application for certiorari. Once the appellate court renders a decision, O.C.G.A. § 5-6-48 becomes the exclusive method for supplementing the record. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 463 S.E.2d 703 (1995).
Written motion to supplement not required.
- By participating in the state's attempt to supplement the record during a hearing on a motion for new trial, a defendant acquiesced in the state's presentation of the state's theory that the trial court's admonition to the defendant of the right to testify was missing from the record, and it was not necessary that the state file a written motion under O.C.G.A. § 5-6-41(f) to supplement the record. State v. Nejad, 286 Ga. 695, 690 S.E.2d 846 (2010).
Ordering trial clerk to submit omitted requests to charge.
- Requests to charge are of such importance in an appeal when the trial court's giving of a charge is cited as error that the appellate court will order the clerk of the trial court to submit that portion of the trial record to the appellate court pursuant to subsection (f) of O.C.G.A. § 5-6-41, and a motion to strike the state's supplementation of the record to include the requests on the ground that it is tardily filed will be denied. Vick v. State, 166 Ga. App. 572, 305 S.E.2d 17 (1983).
Indigent appellant must take steps to provide transcript.
- Although the trial court declared the appellant indigent, and directed the state to provide the appellant with a trial transcript, the appellant apparently took no steps, by making timely request or otherwise, to insure that the pretrial hearing regarding the appellant's motion in limine was duly recorded, nor did the appellant request that the trial court reconstruct this hearing. In the absence of this transcript, the appellate court could not consider the appellant's enumerated error as to the denial of the appellant's motion. Jones v. State, 187 Ga. App. 25, 369 S.E.2d 314 (1988).
Improper supplementation.
- Supplementation of the record by both the defendant and the state by appending attachments to their respective briefs was not an authorized method; the appellate court cannot consider the factual assertions of the parties appearing in briefs when the evidence does not appear on the record. Leatherwood v. State, 212 Ga. App. 342, 441 S.E.2d 813 (1994).
Lost transcripts.
- Plaintiff's motion for a new trial because transcripts and exhibits were lost or destroyed by the court reporter was properly denied when the trial court followed the proper procedure in recreating a narrative transcript, and evidence in the available transcript and the narrative transcript supported the jury's verdict. Xiong v. Landford, 226 Ga. App. 126, 485 S.E.2d 534 (1997).
Defendants failed to meet defendants' burden to affirmatively show error by the record when the defendants failed to include in the record those items that would enable the court to perform an objective review of the evidence and proceedings, pursuant to subsection (c) of O.C.G.A. § 5-6-41, by not including a transcript or a statutorily authorized substitute. City of Byron v. Betancourt, 242 Ga. App. 71, 528 S.E.2d 841 (2000).
Because the defendant was deprived of an adequate trial transcript when a fire at the court reporter's house destroyed the tapes and materials for the transcript, the defendant was denied the defendant's right to appeal, and the defendant was therefore entitled to a new trial; the state's 14-page recreation of the six-day trial prepared under O.C.G.A. § 5-6-41 was manifestly inadequate. Johnson v. State, 302 Ga. 188, 805 S.E.2d 890 (2017).
Entirety of record required.
- Trial court's denial of defendant's motion to vacate a sentence was affirmed because the defendant did not request that the entire record be transmitted to the appellate court, and, therefore, the appellate court was required to assume that the trial court ruled correctly. Arnold v. State, 276 Ga. App. 680, 624 S.E.2d 258 (2005).
Incomplete transcript for probate appeal of contempt required remand.
- Probate court order finding a decedent's son in contempt of court for violating the court's orders to preserve and return certain specified property of the father's estate was vacated because the appellate record was incomplete since the co-administrators did not file any brief disputing the son's claim that the evidence showed compliance with the probate court's order was impossible. In re Estate of Banks, 339 Ga. App. 144, 793 S.E.2d 451 (2016).
Failure to correct inaccurate transcript.
- Inmate's habeas petition alleging a defective plea was properly denied because, although the inmate pled at a group hearing, the transcript showed that the defendants stated that the defendants knew the rights the defendants were giving up; among other things, the inmate did not pursue any remedy in the trial court to correct an inaccurate transcript pursuant to O.C.G.A. § 5-6-41(f). Bullard v. Thomas, 285 Ga. 545, 678 S.E.2d 897 (2009).
Stipulated Transcripts
Submission of transcript prepared by recollection.
- Subsections (c), (d) and (g) authorize submission of transcript prepared from recollection only when trial has not been reported or when, for some other reason, actual transcript is not obtainable. Harrison v. Piedmont Hosp., 156 Ga. App. 150, 274 S.E.2d 72 (1980).
State's motion to dismiss a defendant's appeal was denied; a transcript prepared by recollection was properly before the appellate court, because according to O.C.G.A. § 5-6-41(d), (f) and (g), a transcript prepared from recollection did not need judicial approval or intervention unless the parties could not agree on what transpired, and here, the defendant and the state agreed on the transcript prepared by recollection and both parties signed the agreement, and according to O.C.G.A. § 5-6-41(g), the agreement of the parties thereto or their counsel entitled such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter. Branton v. State, 258 Ga. App. 221, 573 S.E.2d 475 (2002).
Defendant wishing to establish that record is in error.
- If the defendant in misdemeanor case wishes to establish that record as the record appears was in error, the defendant should have availed oneself of right of construction of record from recollection under subsection (g). Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976).
When transcript is unavailable, agreed upon statement of facts in brief may suffice.
- In instances when transcript is unavailable and such facts as are necessary for disposition are stated in brief, and the state concedes such statement is substantially correct, the appellate court may reach a decision on agreed upon facts. Holzmeister v. State, 156 Ga. App. 94, 274 S.E.2d 109 (1980).
Judicial approval required.
- When a stipulation approved by both counsel does not have attached thereto approval by the trial judge, which is clearly required by subsection (i) of O.C.G.A. § 5-6-41, the appellate court has no authority to consider the enumerations of error as having been raised in the trial court in accordance with the statements contained in the stipulation if the appellate court must review the evidence submitted at trial. Under the circumstances, the appellate court must affirm the judgment. Elliott v. Georgia Baptist Convention, 165 Ga. App. 800, 302 S.E.2d 714 (1983).
Appellate court affirmed the trial court's award of summary judgment, as there was no transcript of the hearing on the motion, and the plaintiff had presented evidence at the hearing; furthermore, no narrative transcript was available under O.C.G.A. § 5-6-41(g), as the trial judge made clear that the trial judge could not recall what transpired at the hearing. Tanks v. Greens Owners Ass'n, 281 Ga. App. 277, 635 S.E.2d 872 (2006).
Submission requirements.
- There is no authority for counsel to file such stipulation in appellate court, and effort of counsel to do so is a nullity. Martin v. Department of Pub. Safety, 226 Ga. 723, 177 S.E.2d 243 (1970); Freeman v. State, 215 Ga. App. 341, 450 S.E.2d 346 (1994).
Stipulated transcript is subject to same requirements regarding time of filing as transcript by court reporter, that is, that it be filed with clerk of lower court within 30 days of filing of notice of appeal in absence of order of lower court extending time for such filing. Ponce De Leon Properties, Inc. v. Fulton Cotton Mills, 116 Ga. App. 205, 156 S.E.2d 487 (1967).
Trial court's certificate is a final determination of what took place on trial of case. Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969).
Trial court is final arbiter of any differences in preparation of record. Miller v. State, 150 Ga. App. 597, 258 S.E.2d 279 (1979); Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981); Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324 (1992), cert. denied, 203 Ga. App. 907, 416 S.E.2d 324, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992); Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994).
Any issue as to correctness of the record is to be resolved by the trial court for that court retains jurisdiction even after the case is docketed in the appellate court to add additional record. Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981).
Trial court controls determination of final record and may supplement record.
- Subsection (f) makes clear that the trial court controls determination of final record on appeal, and may even supplement record designated by parties on the party's own motion. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).
When parties disagree regarding omissions from transcript.
- When parties are unable to agree on stipulation as to that which was omitted from transcript, the appellate court is restricted to consider only facts stated in trial judge's certificate. Firestone v. Walker, 116 Ga. App. 316, 157 S.E.2d 509 (1967); Elliott v. Flewellyn, 174 Ga. App. 486, 330 S.E.2d 185 (1985).
Judicial approval required.
- When the trial court did not approve the plaintiff's motion to certify a transcript which the plaintiff prepared from memory and which the defendants contested, the decision was final and nonreviewable. Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995).
Trial court's disapproval of transcript prepared by appellant bars transcript's use.
- When proposed transcript prepared by appellant is disapproved by the trial court, this is sufficient to bar the transcript without necessity of showing that appellee formally objected to the proposed transcript. Burns v. Barnes, 154 Ga. App. 802, 270 S.E.2d 57 (1980); Welch v. Mercer, 165 Ga. App. 776, 302 S.E.2d 629 (1983).
Statement of testimony approved by neither opposing counsel nor trial court.
- Statement of testimony at trial submitted by defense counsel and approved by neither opposing counsel nor trial court may not be considered by appellate court. Parker v. State, 154 Ga. App. 668, 269 S.E.2d 518 (1980).
When the state refused to stipulate to the defendant's transcript because the witnesses were unable to remember their testimony and the trial judge indicated on the front of the proposed stipulation that the trial judge did not remember what transpired at the trial, the appellate court could not consider the defendant's challenge to the sufficiency of the evidence. Wright v. State, 215 Ga. App. 569, 452 S.E.2d 118 (1994).
Amendment of brief prepared by appellee's counsel and assented to by appellant's counsel.
- When evidence was not reported at trial, but appellee's counsel prepares a brief of evidence, which was assented to by counsel for appellant, there is no error in court allowing and approving amendment to brief over objection of counsel for appellant. Kenner v. Whitehead, 115 Ga. App. 760, 156 S.E.2d 136 (1967).
Trial court's recreating of court's own transcript is not subject to review so long as the transcript satisfies requirements of section of being a transcript of evidence (as opposed to conclusions of fact). Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975).
Options of judge in recreating transcript.
- When trial judge acts under this section to recreate transcript, the jduge may do so by comparing submissions of parties, or by approving (with changes in accord with court's recollection) submission of one party or the other, or the judge may recreate a transcript by the judge's own composition. Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975).
Judge's certification of party's summary.
- In absence of agreement by parties, trial court is under no obligation to certify either party's summary of testimony unless it be in accord with the party's own recollection of the evidence. Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975).
Videotape.
- Under O.C.G.A. § 5-6-41(f), the appellate court could consider alleged error regarding the trial court's failure to redact portions of a videotape used at trial even though the videotape was not part of the record on appeal when the parties stipulated to the contents of the disputed portion of the videotape. Priebe v. State, 250 Ga. App. 725, 553 S.E.2d 5 (2001).
Record insufficient to permit appellate review.
- Defendant's Batson challenge failed because the defendant did not satisfy the defendant's burden under O.C.G.A. § 5-6-41 to have the record completed; the recollections of the defendant and the state about what happened in jury selection did not provide a basis for appellate review as colloquies between court and counsel and argument of counsel were not competent evidence of the facts observed therein and did not suffice to make a proper record of facts required to establish a prima facie case of discrimination. Acey v. State, 281 Ga. App. 197, 635 S.E.2d 814 (2006).
Action did not comply with the procedures governing the preparation of the record for appeal, O.C.G.A. § 5-6-41(g), because although an insured did not object to the introduction of the affidavit of a driver's lawyer attesting to the trial court's voir dire procedures, the methods of preparing a transcript by recollection as set out in O.C.G.A. § 5-6-41 were not followed; the court of appeals could not consider the lawyer's unilateral attempt to provide a potentially biased account of what transpired in the trial court. Sibley v. Dial, 315 Ga. App. 457, 723 S.E.2d 689 (2012).
Expenses of Recordation and Transcription
Any party has absolute right to have case reported at own expense in all cases. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974).
Court not required to record proceedings.
- While any party may, as a matter of right, have a case reported at that party's expense, O.C.G.A. § 5-6-41 does not require a trial court in a civil action to have the proceedings and evidence reported by a court reporter. Finch v. Brown, 216 Ga. App. 451, 454 S.E.2d 807 (1995).
Notice of right to have case reported.
- Trial judge is not obligated to inform parties of their right to have case reported at their own expense under subsection (j). Liberty Loan & Thrift Corp. v. Meeks, 115 Ga. App. 846, 156 S.E.2d 172 (1967); Gunter v. National City Bank, 239 Ga. 496, 238 S.E.2d 48 (1977).
Parties must bear transcription costs in civil cases and a trial court did not err in denying a request for public funds to cover transcription costs of a summary judgment hearing. Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995).
When the defendant does not offer to pay for recordation, subsection (j) is not applicable. Newell v. State, 237 Ga. 488, 228 S.E.2d 873 (1976).
Nonindigent appellant failing to have trial reported at own expense under subsection (j) must accept consequences, including possibility that record adequate for appeal cannot be prepared by one of the alternate methods provided by section. Walker v. State, 153 Ga. App. 89, 264 S.E.2d 565 (1980).
Cost of obtaining transcript falls on party desiring that the transcript be transmitted to the appellate court. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).
While costs of having transcript prepared by court reporter are an expense of appeal, they are not costs of appeal which are recoverable from appellee when the appellant is successful in obtaining a reversal in the appellate court. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).
Allocation of costs of supplementing record.
- If trial court finds that additional portions designated by appellee are necessary to complete record on appeal, costs must be paid by the appellant; only if considered unnecessary on appeal, should costs be taxed against the appellee. Trial court's decision will not be reversed absent manifest abuse of discretion. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).
Motion to tape record proceedings.
- Party has a right to choose not to go to the expense of hiring a court reporter, and may instead make a reasonable request by written motion at the outset of trial to personally tape record the proceedings for aid in the event of a retrial or appeal. King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986).
Court's arbitrary denial of a properly made motion to tape record the trial proceedings does not constitute reversible error unless actual harm to the requesting party is demonstrated. King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986).
Indigent appellant.
- Provision to indigent appellant of transcript of continuance hearing was unnecessary for appeal from denial of motion for continuance when no testimony had been given at hearing. Miller v. State, 165 Ga. App. 487, 299 S.E.2d 174 (1983).
No right to reporter services in civil appeal.
- Indigent does not have the right to free court reporter services in an appellate, civil proceeding. Quarterman v. Edwards, 169 Ga. App. 300, 312 S.E.2d 643 (1983).
Presumption of propriety of judgment when appellant fails to pay for record preparation.
- When the plaintiff failed to pay necessary costs for preparation of a record so that no record was filed on appeal, the trial court's granting of a summary judgment in quia timet action was presumed to be supported by sufficient evidence and the judgment was affirmed. Vaughan v. Buice, 253 Ga. 540, 322 S.E.2d 282 (1984).
No express refusal to pay obtained.
- Trial court erred in a civil suit by denying an appealing plaintiff's motions for a trial transcript and for a new trial based on not having a transcript as a pretrial order did not qualify as an express ruling that the plaintiff expressly refused to pay for the costs of the transcript. Further, the pretrial order in no way qualified as a ruling invoked at the commencement of the proceedings. Moore v. Ctr. Court Sports & Fitness, LLC, 289 Ga. App. 596, 657 S.E.2d 548 (2008), cert. denied, 2008 Ga. LEXIS 463 (Ga. 2008).
Application
Supreme Court of Georgia declined to address the defendant's enumeration challenging the trial court's ruling on the supplemental issue raised at a hearing to reconstruct the evidence, as the filing of a notice of appeal divested the trial court of jurisdiction to consider that issue. Moreover, while O.C.G.A. § 5-6-41(f) allowed the trial courts to retain some control over the record on appeal in certain instances, the statute's purpose was solely to make the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Ruffin v. State, 283 Ga. 87, 656 S.E.2d 140 (2008).
Enumeration of error regarding prosecutor's argument.
- When the prosecutor's argument was not transcribed and counsel for the plaintiff had made no effort to correct or complete the record as provided in the section, enumeration of the error dealing with an alleged improper argument by the prosecutor cannot be reviewed. Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976).
When closing arguments of the attorneys are not reported, and where the defendant does not supplement the record by any of the approved methods, an enumeration dealing with improper closing argument by the district attorney is deemed abandoned. Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984).
With neither an original transcript of the offending portions of the assistant district attorney's argument nor a transcript prepared from recollection, the appellate court had to presume that the trial court acted correctly. Houck v. State, 173 Ga. App. 388, 326 S.E.2d 567 (1985).
Litigant's failure to arrange for court reporter.
- Trial court did not err in denying a bank customer's motion to record all proceedings in a bank's action against the customer. The customer had notice of the hearing and could have arranged for a court reporter to be present, and the trial court advised the customer that a court reporter was available. Vadde v. Bank of Am., 301 Ga. App. 475, 687 S.E.2d 880 (2009), cert. denied, No. S10C0624, 2010 Ga. LEXIS 338 (Ga. 2010); cert. denied, 131 S. Ct. 298, 178 L. Ed. 2d 143 (2010).
Failure to transcribe certain proceedings.
- Trial court did not err in failing to take down certain bench conferences, objections to closing arguments, questions from the jury, and the court's responses to jury questions because the defendant could not show prejudice from this purported nonfeasance and no attempt was made to amend or to supplement the record. Boone v. State, 250 Ga. App. 133, 549 S.E.2d 713 (2001).
Failure to record telephonic hearing.
- Driver's claim that the trial court erred in denying the driver's motion for continuance based on the driver's expert's unavailability during the week of trial was not preserved for review because the driver did not have the telephonic hearing of the motion transcribed or otherwise complete the record under O.C.G.A. § 5-6-41(f). Pointer v. Roberts, 288 Ga. 150, 702 S.E.2d 130 (2010).
Failure to order reconstruction.
- Because the defendant did not have the record completed by reconstruction, the appellate court could not determine that any harm was done by the failure to record bench conferences. Atkins v. State, 253 Ga. App. 169, 558 S.E.2d 755 (2002).
Complete transcript received after reconstruction.- Trial court did not err in denying the defendant a new trial because the defendant received a complete transcript after reconstruction; the narrative parts which were re-created were sufficiently detailed for meaningful review; and the trial court acknowledged the accuracy of the prosecutors' accounts of the testimony of two witnesses, except that one witness was a nominal-type witness, who did not want to be there. Anderson v. State, Ga. , S.E.2d (Aug. 24, 2020).
Motion to establish transcript properly denied.
- In a case involving a dispute over an estate, the trial court did not err by denying an administrator's motion for a transcript of the bench trial as the record indicated that the administrator, and the opposing side, wanted to proceed with the trial without a court reporter as neither wanted to incur the cost and, therefore, waived the right to have one reconstructed. Barker v. Elrod, 291 Ga. App. 871, 663 S.E.2d 289 (2008).
Failure to record evidence produced when tape was played.
- Defendant was not prejudiced below or on appeal by the failure of the court reporter to record evidence produced when a tape was played, when each member of the jury, and the defendant's counsel, had a copy of a transcript of the tape, and the transcript was admitted in evidence without objection. Royal v. State, 189 Ga. App. 756, 377 S.E.2d 526 (1989).
Failure to have record completed.
- Defendant waived any error in the admission of photographs, admitted over defendant's objection, as defendant failed to place the basis for the objection on the record or to have the record completed under O.C.G.A. § 5-6-41(f). Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).
While the trial judge might require the parties to have the proceedings reported, even if such was done, it remained the appellant's duty to have the transcript prepared for purposes of an appeal; hence, a claim that the probate court erred in not ordering that a record be made of the hearings lacked merit. LaFavor v. LaFavor, 282 Ga. App. 753, 639 S.E.2d 633 (2006).
Supreme court could not review the defendant's claim that the trial court set pretrial bond in an excessive and unreasonable amount because the defendant failed to have the record completed pursuant to O.C.G.A. § 5-6-41; testimony at the hearing on the motion for new trial was not a sufficient substitute for a transcript, and without a transcript of the bond hearing or a statutorily authorized substitute, the supreme court had to assume that the trial court's judgment was correct. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).
Appellate court assumes contempt finding correct when no transcript.- Because there was no transcript of the evidentiary hearing, the court assumed that the probate court's judgment that the appellant was in contempt was correct. In re Estate of Butler, Ga. App. , S.E.2d (July 17, 2020).
Section precludes use of
§ 9-11-43(b) to cure absence of transcript. - Because of O.C.G.A. § 5-6-41, affidavit, deposition, and oral testimony provisions of O.C.G.A. § 9-11-43(b), pertaining to hearing of motions based on facts not appearing of record, cannot be used to cure absence of transcript of proceedings for post-trial motions or for appellate review. Wall v. Citizens & S. Bank, 274 Ga. 216, 274 S.E.2d 486 (1981).
Amendment of judgment is not a means of bringing evidence to appellate court.
- Although amendment to judgment of court, sitting without jury, adding thereto certain statements, findings of fact and conclusions of law, is authorized by Ga. L. 1970, p. 170, § § 9-11-52, an amendment is not an authorized means of bringing evidence to an appellate court on appeal under this Ga. L. 1965, p. 18, § 10. Chapman v. Connor, 138 Ga. App. 518, 226 S.E.2d 625 (1976).
Duty of appellant who states in notice of appeal that transcript will be transmitted.
- Appellant who states in notice of appeal that transcript is to be transmitted as part of appellate record is statutorily mandated to cause court reporter to prepare and file an original and one copy of transcript with clerk of trial court together with court reporter's certificate attesting to correctness thereof within 30 days after filing of notice of appeal unless time is extended as provided in Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39). State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).
Homeowner's appeal in a wrongful foreclosure case was properly dismissed due to the homeowner's failure to file the transcript of the summary judgment proceedings for more than eight months after the deadline provided in O.C.G.A. § 5-6-42; the homeowner's proceeding in forma pauperis, O.C.G.A. § 9-15-2, did not excuse the homeowner's failure to timely obtain the transcript. Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 758 S.E.2d 135 (2014).
Brief cannot serve as record or transcript for demonstrating error or for supporting claim of error. Holzmeister v. State, 156 Ga. App. 94, 274 S.E.2d 109 (1980).
Plaintiff's attempt to supplement the record with affidavits from plaintiff's attorneys stating that an oral request for qualification of prospective jurors was made prior to jury voir dire did not comply with the dictates of subsection (f) of O.C.G.A. § 5-6-41, and thus created no record evidence for purposes of appeal. Hardy v. Tanner Medical Ctr., Inc., 231 Ga. App. 268, 499 S.E.2d 121 (1998).
Addendum to a court order containing findings of fact in a child custody proceeding could not substitute as a trial transcript because the addendum was not prepared in accordance with O.C.G.A. § 5-6-41. Burger v. Krueger, 224 Ga. App. 179, 480 S.E.2d 230 (1996).
Litigant cannot obtain recordings from reporter and employ a typist to transcribe recordings.
- There is no duty on litigant to take recordings of evidence from reporter and have the recordings transcribed by typists employed by a litigant. In fact, such a practice cannot be allowed. The reporter has a duty to give a correct report of proceedings on the trial, and must certify to the correctness of such transcript under subsection (e) of this section. Diamond v. Liberty Nat'l Bank & Trust Co., 228 Ga. 533, 186 S.E.2d 741 (1972).
Delivery by designated agent.
- Under subsection (e), required delivery of transcript to clerk may be by designated agent. Shield Ins. Co. v. Kemp, 117 Ga. App. 538, 160 S.E.2d 915 (1968).
Last minute request for reporter.
- Motion for continuance should be granted when request for court reporter was made one day in advance but none was available on day of trial. Massey v. State, 127 Ga. App. 638, 194 S.E.2d 582 (1972).
Order prohibiting contact with court reporter.
- Trial court did not err in ordering the parties and their counsel not to contact the court reporter because the appellant failed to show any harm by the order and the parties were in no way precluded from obtaining transcripts of the proceedings. Murphy v. Freeman, 337 Ga. App. 221, 787 S.E.2d 755 (2016), cert. denied, No. S16C1686, 2016 Ga. LEXIS 824 (Ga. 2016).
When reporter's hearing disability causes transcription errors.
- When the defendant satisfactorily shows that due to reporter's hearing disability, the corrected transcript is not true, complete, and correct, the trial court errs in not granting motions to have another court reporter transcribe tapes. Wilson v. State, 246 Ga. 672, 273 S.E.2d 9 (1980).
When failure to record motion for new trial and ruling thereon is harmless error.
- In absence of allegation that transcript is inaccurate or that a dispute exists as to the court's ruling, failure of the court reporter to record a motion for a new trial and ruling is harmless error. Zachary v. State, 150 Ga. App. 388, 258 S.E.2d 158 (1979), aff'd, 245 Ga. 2, 262 S.E.2d 779 (1980).
No requirement that trial judge order transcription of all habeas hearings.
- Former Code 1933, § 50-124 (see O.C.G.A. § 9-14-20) had reference to pleadings and orders in habeas corpus cases and did not require that the trial judge order all habeas hearings to be reported and transcribed. Hilliard v. Hilliard, 243 Ga. 424, 254 S.E.2d 372 (1979).
Failure to order transcription of habeas proceeding to regain child custody.
- When, in habeas corpus proceeding, divorced father sought to regain custody of son, the trial court did not err in failing to order hearing transcribed. Hilliard v. Hilliard, 243 Ga. 424, 254 S.E.2d 372 (1979).
Defense counsel may refuse court's offer to have evidence and proceedings transcribed.
- Defense counsel does not jeopardize the defendant's right to appeal and thereby ineffectively assist the client when, in misdemeanor trial, counsel refuses the court's offer to have evidence and proceedings transcribed. Hunt v. State, 133 Ga. App. 548, 211 S.E.2d 601 (1974).
Presumption that trial court acted correctly when no transcript prepared.
- Defendant's assertion that the trial court erred in denying the defendant's motion for a mistrial made following the prosecutor's closing argument failed, when the defendant contended that the prosecutor improperly commented on the defendant's failure to testify, yet the prosecutor's closing argument was not transcribed nor was a substitute included in the record. With neither an original transcript of the offending portions of the prosecutor's argument nor a transcript prepared from recollection, the court must presume that the trial court acted correctly. Peterson v. State, 204 Ga. App. 532, 419 S.E.2d 757 (1992).
When the defendants argued that the trial court erred in denying the defendants' motions for retrial, and the defendants failed to provide a complete appellate record containing the defendants' motions for retrial or the trial court's rulings, the defendants did not satisfy the defendants' burden under O.C.G.A. § 5-6-41, and the appellate court could not review the issue. Bollinger v. State, 259 Ga. App. 102, 576 S.E.2d 80 (2003).
Sheriff's claim that a corporation failed to prove that a defendant in fieri facias transferred its rights to the excess funds generated in a tax sale was rejected as the sheriff failed to file a transcript or a stipulation of evidence in lieu of a transcript pursuant to O.C.G.A. § 5-6-41(i); the trial court proceedings were entitled to a presumption of regularity and the appellate court had to assume that the trial court's findings were supported by sufficient competent evidence. Barrett v. Marathon Inv. Corp., 268 Ga. App. 196, 601 S.E.2d 516 (2004).
Bank's writ of possession for a foreclosed property was affirmed as a tenant in sufferance failed to file a transcript or a statutorily-authorized substitute; the evidence was assumed to support the grant of the writ of possession. Wimbley v. Washington Mut. Bank, 271 Ga. App. 477, 610 S.E.2d 124 (2005).
Trial court's grant of a writ of possession to a lessor was presumed to be correct as the lessee's claims that the lessor waived the parking provision and that the default notice was improperly sent, required a review of the evidence submitted at trial; the lessee failed to file a transcript and did not attempt to reconstruct the transcript as allowed by O.C.G.A. § 5-6-41(g) and (i). Great Lake Enters. v. AJK Group, Inc., 272 Ga. App. 439, 612 S.E.2d 606 (2005).
Trial court's finding that an injured party did not dismiss a suit before the party was found in contempt of the trial court's order awarding a company an attorney fee for the injured party's discovery violations was presumed to be supported by the evidence as the injured party failed to include a transcript or a legally acceptable substitute in the record on appeal. Collier v. D & N Trucking Co., 273 Ga. App. 271, 614 S.E.2d 801 (2005).
As a condominium unit owner's appeal from a contempt order of the trial court did not include a transcript of the trial court proceedings or a recreation of the record as provided for in O.C.G.A. § 5-6-41(g) and (i), the owner failed in the burden of proof and the appellate court presumed that the evidence supported the trial court's judgment. Schroder v. Murphy, 282 Ga. App. 701, 639 S.E.2d 485 (2006), cert. denied, 2007 Ga. LEXIS 220 (Ga. 2007).
On appeal from a stalking conviction, because the record failed to show that the oath was not administered to the jury, no reversible error existed, and the appeals court had to presume that the jury was sworn. Benton v. State, 286 Ga. App. 736, 649 S.E.2d 793 (2007), cert. denied, No. S07C1825, 2007 Ga. LEXIS 753 (Ga. 2007).
Because a commercial tenant, appealing pro se, had not requested a transcript or submitted authorized substitute under O.C.G.A. § 5-6-41, and had expressly noted in notice of appeal that none would be submitted, the court had to presume that the judgment granting a writ of possession to the landlord was correct. Keita v. K & S Trading, 292 Ga. App. 116, 663 S.E.2d 362 (2008).
Although a tenant appealing a writ of possession in favor of a landlord made various arguments based on factual issues that required consideration of the evidence presented to the trial court, the tenant failed to file a transcript of the proceedings and failed to reconstruct the proceedings in accordance with O.C.G.A. § 5-6-41(g) and (i); the tenant had the burden to show error by the record, but failed to provide any evidence to support the allegations. It was thus presumed that the trial court's order was correct. Siratu v. Diane Inv. Group, 298 Ga. App. 127, 679 S.E.2d 359 (2009).
Although a hearing was held at which the defendant's counsel attempted to perfect the record pursuant to O.C.G.A. § 5-6-41(g), no evidence of what was presented at trial was put on, and the parties did not reach an agreement as to what had transpired at the trial. There being no transcript of the trial, the court was bound to assume that the defendant's convictions were supported by sufficient evidence. Ford v. State, 306 Ga. App. 606, 703 S.E.2d 71 (2010).
When a wife appealed a trial court's decision to enforce the parties' postnuptial agreement but she failed to provide a transcript under O.C.G.A. § 5-6-41, it was assumed that findings that there was full and fair disclosure of the husband's financial condition prior to execution of the agreement were supported by sufficient competent evidence. Spurlin v. Spurlin, 289 Ga. 818, 716 S.E.2d 209 (2011).
Imposition of a penalty for a frivolous appeal was warranted when the appellant failed to include the hearing transcript or an authorized substitute in the record and could have no reasonable belief that the court would reverse the judgment of the trial court. Trevino v. Flanders, 231 Ga. App. 782, 501 S.E.2d 13 (1998).
When the closing arguments of the parties were not recorded but, in an attempt to supplement the record, the defendant's attorney filed an affidavit stating that during the state's closing argument, the assistant district attorney and court reporter were permitted, over the defendant's objection, to reenact the shooting of the victim, the issues raised were "deemed abandoned" by the defendant's failure to supplement the record by any of the methods approved under subsection (f) of O.C.G.A. § 5-6-41. Patterson v. State, 256 Ga. 740, 353 S.E.2d 338 (1987).
Court correctly provided transcript not including complete voir dire and argument of counsel; provision of those portions of the voir dire in which objections were made or rulings were made by the trial court was a sufficient compliance with the requirements of O.C.G.A. § 17-8-5, as was limiting transcription of counsel's argument to those matters to which objection was made. Gardner v. State, 172 Ga. App. 677, 324 S.E.2d 535 (1984).
Depositions sent by supplemental record.
- There was no reversible error and the depositions were considered part of the record when the court relinquished the depositions to defendants' attorney with the understanding that the depositions were to be filed in the clerk's office and transmitted to the appellate court, when counsel failed to do that, the court ordered that the depositions be sent by supplemental record. Custom Lighting & Decorating, Ltd. v. Hampshire Co., 204 Ga. App. 293, 418 S.E.2d 811 (1992).
Certification of reconstructed transcript.
- When the defendant challenged the sufficiency of the evidence at the defendant's trial, defendant's simply pointing out the absence of a ruling in the record on the defendant's motion to certify a reconstructed transcript did not carry the burden of showing that the trial court refused to rule on a reconstructed transcript, and since there was no transcript of the trial, the appellate court was bound to assume that the defendant's conviction was supported by evidence. Goodwin v. State, 251 Ga. App. 549, 554 S.E.2d 317 (2001).
Failure to timely file transcript.
- Trial court properly dismissed the debtors' appeal as a transcript was not filed until over two months after the statutory due date, and the debtors did not request an extension of time to file the transcript; any delay in completing the record past the 30 days granted by statute was presumptively unreasonable and inexcusable. Dye v. U.S. Bank Nat'l Ass'n, 273 Ga. App. 652, 616 S.E.2d 476 (2005).
Trial court did not abuse the court's discretion in ruling that an appellant had not satisfied O.C.G.A. §§ 5-6-42 and5-6-48, that the appellant's delay in filing a transcript was unreasonable and inexcusable, and that the delay in the appeal process was the appellant's fault because the case was remanded to the trial court for the purpose of supplementing or reconstructing the transcript, and at the hearing more than a year later, the appellant offered no evidence as to efforts taken by the appellant to obtain the transcript or, if necessary, to file the appropriate motions to extend the time to file the transcript or to have the transcript reconstructed; at no time did the appellant file a motion to reconstruct the record, pursuant to O.C.G.A. § 5-6-41(g), or to extend the time to file the transcript, pursuant to O.C.G.A. § 5-6-39, after the case was remanded to the trial court. Lavalle v. Jarrett, 306 Ga. App. 260, 701 S.E.2d 886 (2010).
Trial court did not abuse the court's discretion in dismissing the parents' appeal under O.C.G.A. § 5-6-48(c) on the ground that the parent's delay in the filing of the transcript was unreasonable, inexcusable, and caused by the parents because the parents took no steps whatsoever to have the transcript prepared until almost ten months after the parents filed their notice of appeal, over seven months after the court reporter informed the parents of the necessary deposit, and almost five months after the trial court informed the parents that the parents would be responsible for bearing the full costs of having the transcript prepared; by waiting to pay the deposit and order the transcript, the parents prevented the case from being docketed and heard in the earliest possible appellate term of court. Bush v. Reed, 311 Ga. App. 328, 715 S.E.2d 747 (2011).
Trial court did not abuse the court's discretion, pursuant to O.C.G.A. § 5-6-48(c), in granting the appellee's motion to dismiss with regard to the transcript on appeal because the appellants' delay in filing the transcript, pursuant to O.C.G.A. §§ 5-6-41(c) and5-6-42, was unreasonable, inexcusable, and caused by the appellants. Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).
As a mother appealed the trial court's denial of her request to modify the parties' parenting plan with respect to their child, but she failed to provide any transcripts for the record on appeal, it was presumed that the evidence supported the trial court's factual findings. Gilchrist v. Gilchrist, 323 Ga. App. 555, 747 S.E.2d 75 (2013).
Restatement of judge's comments into record.
- When, after a lunch break during the guilt phase of the trial, the trial court made a few remarks to the jury while awaiting the return of the defendant, and the trial judge later restated the judge's comments, as well as the judge could remember the comments, into the record, relating that the judge had told the jury that the trial would be slightly delayed because the defendant had eaten late, and had congratulated one of the jurors for having been elected to the board of education, there was no violation of O.C.G.A. § 5-6-41 or O.C.G.A. § 17-8-5, and any possible constitutional error relating to a defendant's right to be present during all stages of a defendant's trial was clearly harmless beyond a reasonable doubt. Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987).
Recollected testimony of witnesses.
- When during a defendant's bench trial, the evidence was not recorded, the defendant did not request or otherwise arrange for recording and, afterwards, the state and the defendant were unable to agree on what transpired during trial, the defendant was afforded the next best thing to a transcript, i.e., the recollected testimony of all witnesses in the criminal trial plus the testimony of persons who observed it. What was recalled was sufficient to conclude that the denial of the defendant's motion for a new trial was proper. King v. State, 195 Ga. App. 353, 393 S.E.2d 709 (1990).
Police officer's testimony.
- In the absence of a transcript for review, the appellate court could assume as a matter of law that a police officer's testimony was sufficient to support a conviction. Jones v. State, 226 Ga. App. 608, 487 S.E.2d 89 (1997).
New trial not required for missing documents.
- Although the defendant contended that the defendant could not obtain full and fair appellate review of the defendant's convictions based on the five documents missing from the record of the defendant's trial, because the defendant did not show that the defendant had been prevented from raising any viable issue on appeal or otherwise harmed as a result of the minimally incomplete record, the defendant was not entitled to a new trial on that ground. Gadson v. State, 303 Ga. 871, 815 S.E.2d 828 (2018).
Burden of proving bias in jury selection.
- Defendant did not meet the burden to complete the record to establish a prima facie case that the state improperly used its peremptory strikes to exclude blacks from the jury when the defendant did not amend or supplement the record to reflect the necessary facts pursuant to subsection (f) of O.C.G.A. § 5-6-41, nor was there any stipulation in the record as to the facts pursuant to subsection (i) of § 5-6-41. Coker v. State, 207 Ga. App. 482, 428 S.E.2d 578 (1993).
Failure to swear jury in criminal trial.
- If the trial court failed to swear the jury in a criminal case, the defendant's remedy was to have the record corrected pursuant to the provisions of O.C.G.A. § 5-6-41(f). Keller v. State, 261 Ga. App. 769, 583 S.E.2d 591 (2003).
Trial court properly concluded that the O.C.G.A. § 5-6-41(f) hearing was held and that the O.C.G.A. § 15-12-139 oath was properly administered when: (1) the defendant did not move to correct the record; (2) unless otherwise shown, the trial court was presumed to have followed the law; (3) although the defendant initially made that objection at the hearing on the motion for new trial, the defendant subsequently acquiesced in the trial court's hearing of the issue at that time, and was granted the opportunity for a second hearing, at which the defendant presented an additional witness; and (4) the trial court credited the prosecutor's distinct memory that the trial court did, in fact, swear the jury. Hill v. State, 291 Ga. 160, 728 S.E.2d 225 (2012).
OPINIONS OF THE ATTORNEY GENERAL
Law does not require that verbatim transcripts be prepared and filed in misdemeanor cases; the holding in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 89 (1956) does not require a contrary ruling since the lack of a transcript in Griffin blocked the appeal, a circumstance which would not apply in a Georgia misdemeanor case. 1970 Op. Att'y Gen. No. U70-69.
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, § 449 et seq.
C.J.S.- 4 C.J.S., Appeal and Error, § 554 et seq.
ALR.
- Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725.
Review on appeal of evidence as to genuineness of disputed documents, 12 A.L.R. 212; 27 A.L.R. 319.
Use in state court by counsel or party of tape recorder or other electronic device to make transcript of criminal trial proceedings, 67 A.L.R.3d 1013.
Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049.
Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding, 31 A.L.R.5th 704.