Rose v. Simpson

WILLIAMS, Chief Justice.

Charles Ivo Rose petitions this court to order the respondent to rule on a motion to proceed in forma pauperis on an appeal from an order made under an RCr 11.42 proceeding. However, we conclude from the body of the petition as well as from the response that Rose is also attempting to secure a copy of the transcript of the record made on his original trial.

The response voices no objection to the entry of an order allowing petitioner to appeal in forma pauperis. There is an objection to the request for a transcript of the record on the original trial because the motion under RCr 11.42 shows on its face that it is without merit. It is pointed out that the petitioner has asked for a transcript of the testimony introduced on his trial although there was no testimony taken as a plea of guilty was entered.

Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, has been cited on numerous occasions; e. g. Jones v. Breslin, Ky., 385 S.W.2d 71 (1964), Davenport v. Winn, Ky., 385 S.W. 2d 185 (1964), as standing for the proposition that an indigent person is entitled to a free transcript in order to perfect his appeal. On an appeal made from an order entered in an RCr 11.42 proceeding the appellant is entitled to a copy of that proceeding. In the absence of an adequate showing that the transcript of the record made at the original trial is necessary to the appeal, such transcript need not be furnished.

In this case no reason has been given for furnishing the record made on the original trial. The petitioner is entitled to a copy of the record made on the RCr 11.42 proceeding. See Roark v. Stivers, Ky., 401 S.W.2d 56 (1966).

The respondent is directed to enter an order allowing the petitioner to appeal in forma pauperis, and a copy of the record on the RCr 11.42 proceedings shall be furnished to the petitioner.

Mandamus granted.

All concur.