Barton v. State , 1977 Ala. Crim. App. LEXIS 1268 ( 1977 )

HARRIS, Judge.

This is an appeal from a conviction on an indictment for robbery and a sentence of ten years in the penitentiary. Appellant is not indigent.

The Attorney General has filed a motion to strike the transcript of the evidence because not timely filed.

The judgment of guilt was entered on February 10, 1976, and appellant gave notice of appeal on that date.

Appellant filed a motion for a new trial on March 11, 1976, and this motion was continued from time to time and the same was overruled and denied on August 9, 1976.

Appellant filed a second notice of appeal on September 17, 1976, which was nothing more than a written memorial of the notice of appeal which he gave at the time he was sentenced on February 10, 1976.

The Court Reporter’s transcript of the evidence was filed in the office of the Circuit Clerk on November 15, 1976, which was 98 days from the date the motion for a new trial was denied. The filing on November 15, 1976, was too late.

The State’s motion to strike the transcript is well taken. We do not have the discretion to ignore it. Therefore, the State’s motion is granted, the Court Reporter’s transcript of the evidence is stricken. Ferguson v. State, 55 Ala.App. 135, 313 So.2d 561.

The record proper is in all things regular. As to this part of the record an affirmance of the judgment is in order. McDaniel v. State, 39 Ala.App. 157,96 So.2d 319; Howard v. State, 44 Ala.App. 519, 214 So.2d 870.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.