Summary
In Ex parte Burnsed, 844 So.2d 526 (Ala. 2001), the defendant, who was charged with a misdemeanor offense of driving under the influence, was convicted in municipal court and sought to appeal directly to this Court.
Summary of this case from Bearden v. StateOpinion
No. 1990792.
Decided March 1, 2001.
Appeal from Evergreen Municipal Court, TR-98-2000; Court of Criminal Appeals, CR-99-0044, Greg Albritton, J.
Paul M. Harden, Sr. of Harden Harden, Monroeville, for petitioner.
Frederick H. Stevens, city atty., Evergreen, for respondent.
After a bench trial in the Municipal Court of the City of Evergreen, Donald Keith Burnsed, represented by counsel, was convicted of the misdemeanor offense of driving under the influence of alcohol (DUI). The proceedings were recorded by a court reporter. A transcript of the bench trial is in the record on appeal. On June 15, 1999, the municipal judge ordered Burnsed to pay a $600 fine and $172.50 in court costs. Burnsed moved for a new trial, which the municipal judge denied on August 19, 1999. On September 14, 1999, Burnsed appealed to the Court of Criminal Appeals pursuant to Rule 30.3(c), Ala.R.Crim.P. Sua sponte, the Court of Criminal Appeals dismissed the appeal without an opinion on November 29, 1999. Burnsed v. City of Evergreen (No. CR-99-0044), 796 So.2d 462 (Ala.Crim.App. 1999) (table). The Court of Criminal Appeals dismissed the appeal on the ground, not raised by the City, that Burnsed had failed to satisfy the requirements of Rule 30.2, Ala.R.Crim.P.:
Rule 30.3(c) provides that a defendant may appeal from the district or municipal court to the Court of Criminal Appeals or to the Supreme Court "by filing with the clerk of the district or the municipal court a notice of appeal within forty-two (42) days from the date of pronouncement of sentence or the date of denial of a timely filed post-trial motion, whichever is later."
"An appeal from the district or municipal court shall go directly to the appropriate appellate court:
"(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or
"(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question."
Because the parties did not stipulate that this case involved only questions of law, this second part of Rule 30.2 does not apply.
(Emphasis added.) See also § 12-12-72, Ala. Code 1975. In its order dismissing Burnsed's appeal, the Court of Criminal Appeals specifically stated that Burnsed had failed "to show that the transcript in question was prepared by a person duly appointed by the trial court to serve as an official court reporter." Citing Ex parte French, 547 So.2d 547 (Ala. 1989), the Court of Criminal Appeals stated further, "[a]bsent such an appointment the transcript in question is nothing more than an unofficial record and will not serve as an adequate record for purposes of Rule 30.2(1) of the Alabama Rules of Criminal Procedure unless the City of Evergreen approves of its usage."
In an application for rehearing, Burnsed asserted that, after the Court of Criminal Appeals dismissed his appeal, it should have then transferred his case to the circuit court for a trial de novo. Overruling Burnsed's application for rehearing and denying his Rule 39(k), Ala.R.App.P., motion, the Court of Criminal Appeals stated that it could not transfer the case to the circuit court because the circuit court did not have jurisdiction to hear the case because Burnsed did not file his notice of appeal within 14 days of the denial of his motion for a new trial, as required by Rule 30.1(a), Ala.R.Crim.P. The Court of Criminal Appeals noted that, although Burnsed invoked the jurisdiction of the Court of Criminal Appeals by filing his notice of appeal to the Court of Criminal Appeals 25 days after his posttrial motion was denied (within the 42-day jurisdictional time limit for appealing from municipal court to the Court of Criminal Appeals under Rule 30.3(c)), he failed to invoke the jurisdiction of the circuit court because he filed his notice outside the 14-day jurisdictional time limit for appealing from municipal court to circuit court. The order of the Court of Criminal Appeals invites this Court to amend the jurisdictional time limit in Rule 30.3(c) from 42 days to 14 days so that, when the Court of Criminal Appeals dismisses an appeal from the municipal or district court, it will then have the authority to transfer the case to the circuit court for a trial de novo.
Burnsed has petitioned this Court for certiorari review, which we have granted. This opinion does not address whether we should amend Rule 30.3(c) to be consistent with Rule 30.1(a), because this Court finds that the Court of Criminal Appeals erred in dismissing Burnsed's appeal on the ground that an adequate record of the municipal court proceedings did not exist.
The case of Ex parte French, supra, cited by the Court of Criminal Appeals in support of its finding that Burnsed did not provide an adequate record of the municipal court proceedings, is distinguishable from the case before us. In Ex parte French, an employee sued his employer in thedistrict court for breach of contract. After hearing testimony and arguments, the district court entered a judgment in favor of the employer. The employee appealed to the circuit court, where the employer moved for a summary judgment. In support of its motion, the employer attached a copy of the transcript of the district court proceedings, which had been recorded by a stenographer hired by the employer. The employee moved to suppress the transcript, but the circuit court denied the motion and entered a summary judgment in favor of the employer. The employee appealed to the Court of Civil Appeals, which affirmed the judgment of the circuit court. French v. GTE Communication Sys. Corp., 547 So.2d 543 (Ala.Civ.App. 1988).
In his petition to this Court for a writ of certiorari, the employee argued that "the Court of Civil Appeals erred in affirming the circuit court's order overruling his motion to suppress the transcript of the district court proceedings." Ex parte French, 547 So.2d at 547. The employee sought to have the transcript suppressed because the stenographer had been hired by the employer rather than appointed by the trial court or accepted by agreement of both parties. This Court stated that, in holding that the transcript by the private stenographer was admissible, the Court of Civil Appeals neglected to address the application of §§ 12-17-270 through 12-17-277. We held that "an unofficial transcript, prepared by a person not duly appointed as an official court reporter pursuant to the provisions of Ala. Code 1975, §§ 12-17-270 through -277, or [not] approved by the adverse party or parties, is inadmissible in a subsequent trial." 547 So.2d at 549.
Section 12-17-1 et seq., including in particular § 12-17-270 (which authorizes the appointment by the court of an official court reporter) apply in circuit court and district court only. Those Code sections donot apply to municipal courts. Unlike circuit courts and district courts, municipal courts are not courts of record. Ex parte Town of Gulf Shores, 412 So.2d 1259 (Ala.Crim.App. 1982). While a defendant who demands a court reporter is entitled to one in the circuit court or the district court, § 12-17-270, Marquis v. State, 439 So.2d 197 (Ala.Crim.App. 1983), and Ex parte White, 403 So.2d 292 (Ala. 1981), no rule or statutory law requires a municipal court to appoint an official court reporter upon a defendant's request. See, e.g., Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala.Crim.App. 1997).
The defendant hired a court reporter to record the municipal court proceedings. The City objected to the presence of the court reporter for any purpose. The municipal judge sustained the objection insofar as the defendant sought to use the transcript prepared by the court reporter for purposes of appeal pursuant to Rule 30.2. Upon the defendant's petition for a writ of mandamus, the Court of Criminal Appeals held that, because no law authorized the municipal court to appoint a court reporter, "[the defendant] [did] not have a legal right to have a transcript of the municipal court proceedings prepared by any court reporter of his choosing and paid for by him or by a court reporter hired by the City at the City's expense for the purposes of pursuing a direct appeal to this court." 698 So.2d at 1173-74. (Emphasis omitted.)
Because the municipal court was not authorized to appoint an official court reporter, even if requested by Burnsed, Burnsed's failure "to show that the transcript in question was prepared by a person duly appointed by the trial court to serve as an official court reporter" did not constitute a ground for the dismissal of Burnsed's appeal. Rule 30.2(1) itself authorizes a defendant to appeal from the municipal court to the Court of Criminal Appeals or to the Supreme Court "[i]f an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury." The record establishes that the defendant waived his right to a jury trial. Likewise, the record establishes that an adequate record of the proceedings in the municipal court was prepared. The record does not contain any objection by the City of Evergreen to the court reporter, the transcript, its accuracy, or its use for the appeal. Thus, Burnsed has satisfied the requirements of Rule 30.2(1), Ala.R.Crim.P. To the extent that Parker v. City of Tuscaloosa, supra, conflicts with this opinion, it is overruled.
The judgment of dismissal is reversed and this cause is remanded to the Court of Criminal Appeals for reinstatement of Burnsed's appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Note from the reporter of decisions: On May 4, 2001, the Court of Criminal Appeals remanded the case with directions, without opinion. On June 22, 2001, on return to remand, that court affirmed, without opinion. On February 22, 2002, that court denied rehearing, without opinion. On August 23, 2002, the Supreme Court quashed the writ of certiorari, without opinion (1001890).
Moore, C.J., and Lyons, Brown, Harwood, Woodall, and Stuart, JJ., concur.
Houston, J., concurs in the result.
See, J., dissents.
The Alabama Rules of Criminal Procedure allow a defendant who has suffered an adverse judgment in a municipal court to appeal that judgment directly to the Court of Criminal Appeals, under certain conditions. Rule 30.2, Ala.R.Crim.P., provides:
"An appeal from the district or municipal court shall go directly to the appropriate appellate court:
"(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or
"(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question."
Burnsed waived his right to a jury trial, and he argues that the transcript of the municipal court proceeding that was prepared by a person he hired was an "adequate record." The majority agrees, holding that a transcript of a municipal court proceeding prepared by a person employed by the defendant is an "adequate record," as that phrase is used in Rule 30.2(1), Ala.R.Crim.P. I disagree, and, therefore, I must respectfully dissent.
The parties did not enter into a stipulation of facts or a stipulation that Burnsed's appeal presents only issues of law. Therefore, the only portion of Rule 30.2 that would authorize Burnsed to appeal directly to the Court of Criminal Appeals is that portion of the rule allowing an appeal if there is an "adequate record" of the municipal court proceeding.
In Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala.Crim.App. 1997), which the majority overrules to the extent it conflicts with today's decision, the Court of Criminal Appeals considered a case similar to this one. Parker, facing prosecution in the municipal court, hired a court reporter to transcribe the proceeding. The prosecutor objected to the reporter's transcribing the proceeding, and the municipal court judge sustained his objection. Parker petitioned the circuit court for a writ of mandamus, which the circuit court denied. Parker then appealed to the Court of Criminal Appeals, which held, based in part on this Court's decision in Ex parte French, 547 So.2d 547 (Ala. 1989), that "the appellant's argument that he had the right to have 'any court reporter from any source, compensated by any party' transcribe the hearing for purposes of a direct appeal to [the Court of Criminal Appeals was] without merit." Parker, 698 So.2d at 1173.
The majority states that, in Parker, the Court of Criminal Appeals held that a municipal court was not "authorized" to appoint an official court reporter. 844 So.2d at 528 n. 3. I believe that in stating that, this Court overextends Parker. In Parker, the Court of Criminal Appeals stated:
"Sections 12-17-270 through 12-17-277, Ala. Code 1975, govern official court reporters, and they do not require that a municipal court appoint a court reporter as an official court reporter. . . . Therefore, the municipal judge did not have an imperative duty to allow the private court reporter hired by the appellant to create an official transcript for purposes of a direct appeal to this court or an imperative duty to provide, at the City's expense, a court reporter whose transcript could be used for purposes of a direct appeal to this court."
698 So.2d at 1173 (emphasis added). Thus, Parker holds only that a municipal court does not have a duty to provide a court reporter; it did not purport to prohibit a municipal court from providing a court reporter.
In Ex parte French, this Court considered a case involving similar issues. Michael French sued his former employer, GTE Communication Systems ("GTE") in the district court. The district court did not provide an official court reporter; GTE hired a stenographer to record the proceedings. The district court entered a judgment in favor of GTE, and French appealed to the circuit court. GTE offered into evidence the transcript of the district court proceeding that GTE's stenographer had prepared. French moved to suppress the transcript. The circuit court denied French's motion, admitted the transcript into evidence, and entered a summary judgment in favor of GTE. The Court of Civil Appeals affirmed. French v. GTE Communication Sys. Corp., 547 So.2d 543 (Ala.Civ.App. 1988). This Court granted French's petition for certiorari review and considered his argument that the circuit court erred in denying his motion to suppress, and, thus, that the Court of Civil Appeals erred in affirming.
This Court in Ex parte French reviewed several cases in which it had considered the question whether a transcript of a prior proceeding was admissible as evidence in a later proceeding. See Olds v. Powell, 10 Ala. 393 (1846); Degg v. State, 150 Ala. 3, 43 So. 484 (1907); andWoods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681 (1920). In each case, this Court had held that the transcripts were inadmissible. This Court held that GTE's transcript of the district court proceeding was inadmissible as evidence in the circuit court. In so holding, this Court noted that "a transcript by a reporter hired and paid by one party has no . . . guarantee of authenticity, and the opposing party is provided no protection from possible errors or even fraud." Ex parte French, 547 So.2d at 549.
This Court also considered Middleton v. Hartford Accident Indemnity Co., 119 F.2d 721, 724 (5th Cir. 1941), in which the United States Court of Appeals for the Fifth Circuit noted that "the rule concerning official transcripts on appeal `does not contemplate that one party shall employ a stenographer of his choice to report for him, without the authority of court or adversary.'" Quoted in Ex parte French, 547 So.2d at 548.
This Court noted Rule 80, Ala.R.Civ.P., which provides:
"Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony."
However, the Court also noted that Rule 80 "applies only to an official stenographer." Quoting Comment to Rule 80, Ala.R.Civ.P.
The majority concludes that this present case is distinguishable fromEx parte French because this case originated in the municipal court, and because the provisions of the Code of Alabama concerning the appointment of official court reporters, § 12-17-270 et seq., do not apply to the municipal courts. I believe, however, that the concerns voiced in Ex parte French by a unanimous Court are persuasive. In Ex parte French, this Court stated that a transcript prepared without the sanction of the court or the opposing party "has no . . . guarantee of authenticity" and is thus inadmissible in evidence in a later trial. Id. If an unofficial transcript is not sufficiently trustworthy to allow its use as evidence in a subsequent proceeding at the trial court level, I cannot agree that it is sufficiently trustworthy to conclude that it nevertheless is an "adequate record" for purposes of allowing a direct appeal to the Court of Criminal Appeals.
Rule 30.1(a), Ala.R.Crim.P., provides that "[a] defendant convicted of an offense in a municipal court . . . shall have the right to appeal the judgment, within fourteen (14) days of the date of the judgment or the denial of a timely filed post-judgment motion, to the circuit court for a trial de novo." If a defendant is unsuccessful in the circuit court, he would then have an official transcript from which to appeal to the Court of Criminal Appeals. See § 12-17-270, Ala. Code 1975.
I believe that the potential inaccuracy in an unofficial transcript and the possible fraud that could be involved in the use of such a transcript outweigh a party's desire to bypass the circuit court when pursuing an appeal. Therefore, I must dissent from the holding that an unofficial transcript is "adequate" for purposes of allowing an appeal from the municipal court directly to the Court of Criminal Appeals.