Alspach v. State

ORDER

The Appellee, by counsel, having heretofore filed in this cause its Motion to Dismiss, alleging therein that the Appellant, by counsel, filed his brief on May 17, 2001; that the Appellant failed to file an Appendix in this case; that pursuant to Appellate Rule 50(B)(1), the Appendix in a criminal case must contain the entire clerk’s record including the Chronological Case Summary; that because the Appellant has failed to file the required Appendix, counsel for the State does not have access to either the trial court’s file or the prosecutor’s file and thus the failure of the Appellant to provide the clerk’s record in the Appendix makes it impossible for the Ap-pellee to file a responsive brief and for this Court to render a decision on the merits and prays this Court to dismiss this appeal;

The Appellant, by counsel, having thereafter filed his Response to the Motion to Dismiss, alleging that counsel admits he failed to file an Appendix with the Appellant’s brief as required by Appellate Rule 49A; that counsel mistakenly believed that an Appendix was necessary only if the brief of the Appellant referenced or cited to exhibits in the record or if references were made to lengthy excerpts of testimony in the record; that it would be in the best interest of justice for this Court to deny the Motion to Dismiss based on the procedural error of Appellant’s counsel and requests that he be given until June 22, 2001, to file a belated Appendix.

And the Court, having examined these matters, now finds that the allegations of counsel for the Appellee concerning the inability of the State to file its answer brief without the required Appendix, which in a criminal case includes the entire trial court clerk’s record, is a valid complaint, and being duly advised, now FINDS AND ORDERS AS FOLLOWS:

1. The Appellee’s Verified Motion to Dismiss should be and is denied;

2. Counsel for the Appellant is ordered to file a belated Appendix to his previously filed briefs of the Appellant, said Appendix to be prepared in strict compliance with the requirements of Appellate Rule 50B(1), including a copy of the entire record of the trial court clerk in this case, which Appendix shall be filed with the Clerk of the Court of Appeals of Indiana no later than Monday, June 25, 2001;

SULLIVAN, RILEY, ROBB, J.J., concur.