concurring specially.
Prior to 1968, the Supreme Court of Georgia had construed the provisions of the Appellate Practice Act of 1965 concerning the time for filing the transcript of evidence as mandatory and when not complied with to require dismissal of an appeal. Joiner v. State, 223 Ga. 367, 368 (155 SE2d 8). In order to make the intention of the legislative branch of government clear in this regard, the General Assembly amended the Appellate Practice Act in 1968 to provide that “An appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by
*196law or order of court, unless it affirmatively appears from the record that such failure was caused by the appellant.” Ga. L. 1968, pp. 1072, 1074. The amendment also provided that even where it did affirmatively appear from the record, this was a ground for dismissal of the appeal by the trial court, but not by the appellate court. Lake Spivey Parks v. Jones, 118 Ga. App. 60, 62 (162 SE2d 801). However, the Supreme Court refused to follow the 1968 amendment on the theory that notwithstanding any Act of the legislature it has inherent constitutional authority to dismiss any appeal for any reason it deems fit, and held that the time for filing the transcript of evidence is mandatory and unless complied with the appeal must be dismissed whether before the Supreme Court or the Court of Appeals. Fahrig v. Garrett, 224 Ga. 817 (2), supra; Hardy v. D. G. Machinery & Gage Co., 224 Ga. 818, supra. See special concurrence in D. G. Machinery & Gage Co. v. Hardy, 119 Ga. App. 194.
In my opinion the dismissal of the appeal in this criminal case upon such a tickey technicality amounts to a denial of due process of law. However, this court has no alternative but to follow the Supreme Court of Georgia.