State v. Wells , 73 N.C. App. 329 ( 1985 )

326 S.E.2d 129 (1985)

STATE of North Carolina
v.
Pat WELLS.

No. 844SC542.

Court of Appeals of North Carolina.

March 5, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Malcolm Ray Hunter, Jr., Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant contends the court erred in denying his motion to continue, because the ruling denied him the opportunity to obtain a transcript of his first trial in violation of his right to equal protection under the law. We agree, and award defendant a new trial.

Ordinarily a motion to continue is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. If the motion is based on a right guaranteed by the federal and state constitutions however, the issue is one of law, not discretion, and is reviewable on appeal. State v. Davis, 61 N.C.App. 522, 300 S.E.2d 861 (1983). The issue presented here is one of law because the State must, as a matter of equal protection, provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971). Britt does not require that a free transcript of a prior trial must always be provided, however, when the trial court acts in such a manner so as to deny an indigent defendant a transcript it must determine (1) whether the transcript is necessary for the preparation of an effective defense and (2) whether there are alternative devices available to the defendant which are substantially equivalent to a transcript. State v. Rankin, 306 N.C. 712, 295 S.E.2d 416 (1982). Neither the record nor the transcript of the trial contains any indication that the trial court found the transcript was not necessary for the preparation of an effective defense, or that an alternative device was available which was the substantial equivalent to a transcript. In fact, the record tends to show that the trial court denied the motion based, at least in part, upon an erroneous belief that since defendant was indigent and could not pay for a transcript, the State was not required to furnish him one, and, therefore, there was no reason to grant a continuance. Based upon the record before us, we are compelled to find the court ruling denying defendant a continuance without the findings required by our Supreme Court in Rankin, supra, was a violation of defendant's equal protection rights under the Fourteenth Amendment to the Constitution. We, therefore, award defendant a new trial.

Having determined that defendant is entitled to a new trial, we deem it unnecessary to discuss the other issues raised by this appeal.

New trial.

EAGLES and PARKER, JJ., concur.