Bennie B. Barton was convicted of robbery and sentenced to ten years in the penitentiary on February 10, 1976. He gave notice of appeal on the same day.
On March 11 the defendant filed a motion for new trial, which was continued and overruled on August 9. On September 17, the defendant filed a notice of appeal from this post-judgment order.
On November 15, the court reporter filed the transcript of the evidence with the circuit clerk, who completed the record on appeal and filed a certificate of completion with the Court of Criminal Appeals on November 18. No attempt was made to secure an extension of time for filing the reporter's transcript. The defendant asserted the court reporter's mistake in calculating the date on which the transcript was due as the reason for the delay.
The Court of Criminal Appeals granted the State's motion to strike the transcript for noncompliance with Alabama Rules of Appellate Procedure, Rule 11, thus impliedly denying the defendant's motion to suspend the Rules. The conviction was affirmed on the record proper. This court granted writ of certiorari.
We remand this case to the Court of Criminal Appeals for it to exercise its sound discretion to consider whether to suspend the Rules to permit filing the transcript. Rule 2 ARAP provides that the appellate court may, in its sound discretion, suspend the Rules, except for extending the time for taking an appeal, in the interest of expediting decision or for other good cause shown. See also, Comments to Rule 2.
REMANDED TO COURT OF CRIMINAL APPEALS.
All the Justices concur. *Page 754