Kelleher v. State , 187 Ga. App. 811 ( 1988 )

Banke, Presiding Judge.

This is a companion case to Kelleher, Jr. v. State (Case No. 75290) and Kelleher, Sr. v. State (Case No. 75291), jointly decided by this court on February 10, 1988, and reported at 185 Ga. App. 774 (365 SE2d 889) (1988). Held:

1. The appellant has filed a motion in this court seeking to amend her notice of appeal and to supplement the record by the inclusion of her trial transcript, which she did not originally designate for inclusion in the record on appeal. While the Supreme Court’s decision in Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16) (1981), might permit us to deny this motion, it certainly does not require us to do so. Indeed, in State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984), the Supreme Court held that, pursuant to OCGA § 5-6-48 (d), “an appellate court may, in its discretion [and on its own initiative], require that a record be supplemented . . . even after rendition of its decision.”

In view of the fact that the appellant has already caused the transcript of her trial to be transmitted to this court by the clerk of the trial court for inclusion in the record on appeal, no purpose would be served by denying her motion, other than to frustrate needlessly a resolution of the appeal on its merits. Consequently, the motion to amend the notice of appeal and to supplement the record is granted.

2. It is apparent from the transcript of the appellant’s trial that her conviction was based upon evidence seized from her home during the course of a search which this court, upon review of the convictions obtained in the two companion cases, has previously determined to have been unlawful. For the reasons stated in our prior decision reversing those convictions, we hold that the motion to suppress filed by the appellant in this case should also have been granted, with the result that her convictions of possession of cocaine and marijuana must also be reversed.

Judgment reversed.

Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., concurs in judgment only. Birdsong, C. J., dissents. Deen, P. J., dissents dubitante.