State v. Neely

204 S.E.2d 531 (1974) 21 N.C. App. 439

STATE of North Carolina,
v.
Willie Lee NEELY.

No. 7427SC158.

Court of Appeals of North Carolina.

May 1, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Ramseur & Gingles by Ralph C. Gingles, Jr., Gastonia, for defendant.

BROCK, Chief Judge.

Judge Snepp was correct in concluding that the Superior Court was without authority to order a new trial for defendant under the facts summarized above.

Defendant should have proceeded to compile his record on appeal to the extent possible. If the Reporter is unable to furnish a transcript, a statement of that fact, agreed to by the Solicitor or settled by the judge, should be included in the record on appeal. In lieu of the usual narrative statement of evidence, defendant should set out the facts upon which his appeal is based, any defects appearing on the face of the record, and the errors he contends were committed at the trial. If the circumstances so justify, defendant might also assert as an assignment of error that he is unable to obtain an effective appellate review of errors committed during the trial proceeding because of the inability of the Reporter to prepare a transcript. As agreed upon by counsel, or as settled by the trial judge, the record on appeal as above compiled should be docketed in this Court.

If defendant had proceeded as outlined above, this Court would be in a position to determine whether fair and proper administration of justice required a new trial.

It is possible, if he feels so advised, for defendant now to prepare such a record on appeal and present it to this Court with a proper petition for writ of certiorari seeking a review.

However, upon consideration of Judge Snepp's Order, which is the only thing properly before us in the present proceedings, we find that Judge Snepp was correct and his Order is

Affirmed.

PARKER and BALEY, JJ., concur.