Leila Norman v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 1, 2021
In the Court of Appeals of Georgia
A20A1995. NORMAN v. THE STATE.
PHIPPS, Senior Appellate Judge.
In June 2017, a jury convicted Leila Norman of leaving the scene of an
accident. Following the denial of her motion for new trial, she filed a notice of appeal.
The sole issue on appeal is whether the trial court erred in dismissing Norman’s
notice of appeal because she failed to timely file a transcript of the motion for new
trial hearing pursuant to OCGA § 5-6-42. Finding no error, we affirm.
“A trial court’s ruling on whether an appeal is subject to dismissal under
OCGA § 5-6-48 (c) will be reversed only for an abuse of discretion.” Northeast Ga.
Med. Center, Inc. v. HealthSouth Rehabilitation Hosp. of Forsyth County, LLC., 347
Ga. App. 852, 857 (821 SE2d 68) (2018).
The record shows that in August 2018, Norman’s counsel filed a notice of
appeal, which stated that “[t]he Clerk will transmit to the Clerk of the Court of
Appeals the entire record of the case, and not omit any portion of the record and
transcript, including the transcript of the hearing on the amended motion for new trial
in this case.” Counsel, however, did not make any request for the transcript directly
with the court reporter. Over a year later, in September 2019, the trial court sua
sponte scheduled a hearing on October 24, 2019, to consider whether the appeal
should be dismissed because a transcript of the motion for new trial hearing had not
been prepared or filed.
After the hearing, the trial court entered an order dismissing Norman’s appeal.
The trial court found that the delay in the filing of the hearing transcript was caused
by Norman’s counsel and that the delay was prima facie unreasonable and
inexcusable. This appeal followed.
Norman contends that the trial court abused its discretion in dismissing her
appeal. We disagree.
OCGA § 5-6-42 provides that a transcript must be filed within 30
days after the filing of a notice of appeal unless an extension of time is
requested as provided by OCGA § 5-6-39. The trial court may, after
notice and hearing, order an appeal dismissed for a party’s failure to file
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a transcript on time only if the delay was (1) unreasonable, (2)
inexcusable, and (3) caused by such party. OCGA § 5-6-48.
Dalton v. Vo, 224 Ga. App. 382, 382 (480 SE2d 377) (1997). “A delay in excess of
30 days is prima facie unreasonable and inexcusable, but this presumption is subject
to rebuttal if the party comes forward with evidence to show that the delay was
neither unreasonable nor inexcusable.” Kelly v. Dawson County, 282 Ga. 189, 189
(646 SE2d 53) (2007).
Here, the trial court correctly noted that, as the appellant, Norman bore the
responsibility of timely filing the transcript. See Kelly, 282 Ga. at 189. By the time
the trial court held a hearing on this matter in October 2019, over a year had elapsed
without the transcript having been filed. At the hearing, counsel provided no evidence
to establish that the delay was justified.1 Counsel maintained that because he stated
in the notice of appeal that the transcript was to be included in the record, he assumed
that the trial court or the clerk’s office would have notified the court reporter. He
further argued that he was not at fault because he never told the court reporter not to
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On February 28, 2020, counsel filed a motion in the trial court to obtain the
transcripts for the motion for new trial hearing as well as the appeal dismissal
hearing. Those transcripts were produced and included in the appellate record
transmitted to this Court.
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prepare the transcript. While counsel is not responsible for any delays caused by a
court reporter or the clerk’s office, it was his duty to properly request the transcript
in a timely manner. See Northeast Ga. Med. Center, 347 Ga. App. at 856. Compare
Boulden v. Fowler, 202 Ga. App. 237, 238 (414 SE2d 263) (1991) (trial court abused
its discretion in dismissing appeal where evidence showed that delay “was
attributable to the ‘backlog’ of the court reporter, rather than to any act or omission
on the part of the appellants”).
Moreover, counsel concedes that between the filing of the notice of appeal and
the dismissal hearing over a year later, he did not communicate with the court
reporter, clerk’s office, trial court, or the State regarding the status of the case. In fact,
he stated at the hearing that the clerk or the State could have notified the court
reporter that a transcript had not been filed, but this argument ignores well-settled law
that it is the appellant’s duty to order the transcript and monitor the progress of its
preparation. See Newton v. Freeman, 353 Ga. App. 704, 709 (1) n. 7 (839 SE2d 203)
(2020) (“The duty to order the transcript and to monitor timely the progress of the
reporter’s office in transcript preparation is vested upon the appropriate appealing
party.”) (citation and punctuation omitted).
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In an effort to circumvent her burden, Norman argues that “because [she] is
indigent, the ultimate responsibility for the production of the transcript was vested in
the trial court[.]” However, the statute does not distinguish between indigent and non-
indigent defendants. See OCGA § 5-6-42 (“appellant shall cause the transcript to be
prepared and filed[.]”) (emphasis supplied). The fact that Norman is indigent, and
therefore entitled to a transcript at public expense, Mitchell v. State, 280 Ga. 802, 802
(1) (633 SE2d 539) (2006), does not relieve her of the obligation to properly request
the transcript and cause it to be filed.
Because Norman’s counsel failed to properly request the transcript, and has
conceded that he did not communicate about the status of the case with the trial court,
the State, the clerk’s office, or the court reporter for more than a year after filing a
notice of appeal, we find no abuse of discretion in the trial court’s dismissal.
Judgment affirmed. Miller, P. J., and Mercier, J., concur.
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