Mitchell v. State

633 S.E.2d 539 (2006)

MITCHELL v. The STATE.

Nos. S06A0766-S06A0769.

Supreme Court of Georgia.

July 14, 2006.

*540 Michael B. King, Jonesboro, for Appellant.

Scott L. Ballard, Zebulon, Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., Department of Law, Atlanta, Josh W. Thacker, Fayetteville, for Appellee.

HUNSTEIN, Presiding Justice.

Appellants Marvin and Melvin Mitchell were convicted of the felony murder of Jason Trotman and other charges and sentenced to life imprisonment. After a hearing on their post-trial motions, including claims of ineffective assistance of trial counsel, the trial court declared appellants to be indigent and appointed counsel for purposes of appeal. The court, however, denied their requests for free copies of the transcript of post-trial proceedings. Appellants contend in case numbers S06A0767 and S06A0769 that the trial court's denial of their requests for a free transcript was error. We agree and reverse.

1. In criminal cases, "[a]n indigent, on appeal, is entitled as a matter of right to a free copy of the transcript of trial court proceedings in which he has been a party." Stalling v. State, 231 Ga. 37, 38, 200 S.E.2d 121 (1973), citing Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891 (1956) (indigent criminal defendant entitled to trial transcript at public expense). Motions for new trial and other post-trial motions are part of the "proceedings" contemplated by this rule. See Hall v. State, 162 Ga.App. 713(4), 293 S.E.2d 862 (1982). The right to a free transcript arises regardless of whether the indigent defendant was represented by retained counsel at the time of the trial court proceeding for which the transcript is sought. See id.

The trial court here found appellants to be indigent for purposes of appeal and our own review of the record demonstrates that the transcript of appellants' post-trial evidentiary hearing is necessary to allow them to pursue their pending appeals from their criminal convictions. See Stalling, supra at 38, 200 S.E.2d 121 (noting absence of pending appeal in upholding trial court's denial of motion for transcript); Billups v. State, 234 Ga. 147, 214 S.E.2d 884 (1975) (indigent defendant must show justification or need for transcript to be entitled to free copy). Accordingly, we conclude that the court erred by denying appellants' requests for a free transcript of the post-trial proceedings and reverse the decision of the trial court in case numbers S06A0767 and S06A0769.

2. Having determined that appellants were denied their right to free copies of the transcript of post-trial proceedings, their appeals from their convictions in case numbers S06A0766 and S06A0768 are removed from the docket and remanded to the trial court while the transcript is completed. Appellants shall have 20 days from the date of receipt of the transcript to refile their notices of appeal, and upon the filing of such notices of appeal, the cases with the complete record and transcript may be transmitted to this Court for redocketing.

Judgments reversed in Case Nos. S06A0767 and S06A0769. Case Nos. S06A0766 and S06A0768 are stricken from the docket.

All the Justices concur.