☢ test - Í
will not saddle upon the trial courts of this state a sua sponte duty to foresee and advise an accused of potential procedural remedies available to the accused in the event the case takes some particular turn. In the absence of any cognizable prejudicial error, we affirm the judgment of the court below.’” Moss v. State, 278 Ga.App. 362, 629 S.E.2d 5 (January 19, 2006). “Moss argues that the trial court erred by failing to order the court reporter to transcribe several bench conferences. In its order denying the motion for new trial, the trial court found that, based on the testimony of trial counsel and the court’s own recollection, the bench conferences that were not transcribed dealt only with scheduling and logistical matters. In any event, the burden was on Moss, and not the trial court, to complete the transcript. ‘Where 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 OCGA § 5-6-41(f). When this is not done, there is nothing for the appellate court to review.’ (Citation, punctuation, and footnote omitted.) Baker v. State, 247 Ga.App. 25(2) (543 S.E.2d 70) (2000).” Fitzpatrick v. State, 269 Ga.App. 825, 605 S.E.2d 420 (October 1, 2004). “[A]lthough the trial court determined that there had been an unreasonable delay in the filing of the transcript, the court made no specific finding as to whether the delay in filing a transcript was inexcusable or was caused by Fitzpatrick as required under OCGA § 5-6-48(c). As our Supreme Court has noted, the requirements set out in OCGA § 5-6-48 further ‘the policy of both appellate courts in Georgia to attempt to avoid dismissing appeals and to try to reach the merits of every case when it can be done consistent with the mandate of the law.’ (Citations and punctuation omitted.) Brumby v. State, 264 Ga. 215, 218(2) (443 S.E.2d 613) (1994). Because it failed to make the findings required under the statute, the trial court erred in dismissing Fitzpatrick’s appeal. Id. at 216-217(1).” Note, “OCGA § 5-6-48(c) requires an ‘opportunity for hearing’ before a trial court orders an appeal dismissed for an unreasonable and inexcusable delay in filing the transcript,” Menefee v. State , 271 Ga.App. 364, 609 S.E.2d 714 (January 21, 2005) (but no such requirement for hearing before dismissal of motion for new trial). Young v. State, 245 Ga.App. 684, 538 S.E.2d 760 (August 28, 2000). Armed robbery and related convictions, and recidivist sentence, affirmed. No due process violation where defendant’s “motion for new trial was not heard promptly due to a nine-month delay in receiving the trial and sentencing transcript. … Unless it clearly appears that the delay in filing the transcript prevented the presentation of an adequate appeal or impaired a defense which would otherwise be available to an appellant where a new trial is ordered due to trial error, an appellant has not suffered prejudice which turns a transcript delay into a violation of due process of law. Graham v. State, 171 Ga.App. 242, 250- 251(7), 319 S.E.2d 484 (1984).” No such showing here. Knowles v. State, 245 Ga.App. 523, 538 S.E.2d 175 (August 10, 2000). Aggravated assault and related convictions affirmed; defendant waived recording of opening statements, closing arguments and voir dire by failing to seek a ruling on his motion for full recordation. Based on Primas v. State, 231 Ga.App. 861, 862(2), 501 S.E.2d 28 (1998). Lyons v. State, 239 Ga.App. 325, 521 S.E.2d 232 (July 26, 1999). Convicted of DUI in probate court, apparently on a guilty plea, defendant appealed to superior court. Superior court affirmed on the record transmitted from the probate court, which contained a written waiver of rights but no transcript of proceedings. Defendant contends that the appeal procedure contained in OCGA § 40-13-28, “is a constitutionally defective method to review decisions of a non-lawyer judge unless it is construed to require a record (transcript) unless such record (transcript) is waived by the defendant.” Held, the appellate review procedure contained in OCGA § 40-13-28 does not deny due process. “It is undisputed that defendant did not submit a written request for transcription of his bench trial to the probate judge, nor any written objection to the alleged refusal to transcribe that trial. Nor did he employ the substitute for a transcript authorized by OCGA § 5-6-41(g). Rather, in support of his contention, defendant states in his brief that he requested his bench trial ‘be transcribed or recorded [but that this] request was denied ...’ by the probate judge. Under OCGA § 40-13-28, the lower court shall certify the record, but the burden remains on the defendant to ensure that the record includes the issue upon which he or she seeks review as well as the lower court's ruling on such issue, and this procedure satisfies due process. Walton v. State, 261 Ga. 392, 394(2), n. 5, 405 S.E.2d 29 (1991); accord Walker v. State, 204 Ga.App. 559(1), 560, 420 S.E.2d 17 (1992). The very existence of the procedure to recreate the events of an unrecorded trial, as authorized by OCGA § 5-6-41(g), is sufficient to rebut defendant's unsubstantiated allegations that the Code section objected to deprived him of meaningful review of his convictions for driving under the influence of alcohol and weaving over the roadway as alleged in the uniform traffic citations.” H. APPEALS, OUT OF TIME Raheem v. State, 333 Ga.App. 821, 777 S.E.2d 496 (September 16, 2015). Following defendant’s guilty pleas to various
Made with FlippingBook Ebook Creator