State Ex Rel. Legg v. Boles

Berry, Judge,

dissenting:

I respectfully dissent from the majority opinion wherein it grants the relief prayed for as far as it applies to the part of the sentence dealing with the additional sentence imposed under the habitual criminal act. Code, 61-11-19, The majority opinion is based on the failure of the petitioner to obtain a transcript provided for in Code, *36051-7-7, as amended, pertaining to testimony as to whether he was the same person mentioned in the other convictions contained in the information filed under the provisions of Code, 61-11-19.

The petitioner had pleaded guilty to the offense charged in the indictment and not guilty to the information containing charges of the previous convictions. The jury found that he was the same person named in the information and the court sentenced the petitioner thereon.

Upon the petitioner’s written request for a free transcript to seek an “appeal in habeas corpus * * * or writ of error * * * ” from the judgment of the trial court, it authorized and directed the court reporter to furnish a transcript of the testimony in question. The reporter, upon being directed by the court to furnish the transcript wrote the petitioner that he would do so and that petitioner could expect it in about six weeks. It was not furnished within the time stated by the court reporter, and the petitioner did not inquire of the court or the court reporter as to why it was not furnished. However, after the time for an appeal from the judgment of the lower court had passed, the petitioner filed this petition in this court for a writ of habeas corpus without the transcript. The transcript was furnished soon after this petition was filed in this Court and the court reporter gave as the reason for not furnishing it sooner that he understood that petitioner wanted the transcript for use in a habeas corpus proceeding and that inasmuch as such proceeding could be instituted at any time he made no effort to furnish it sooner. He also stated that: “Had the defendant informed the Court of his intention to take an appeal to the Circuit Court, I would have gotten the transcript to him earlier, and well within the four month limitation.”

In the first place it is extremely doubtful if the provisions of Code, 51-7-7, as amended, apply to the instant case because the free transcript referred to in this section of the Code applies only to cases where an indigent person has been tried and found guilty under indictments for misdemeanors and felonies, and even if it does apply to an information such as is involved in the present proceed*361ing the issue is not whether he is guilty of the former conviction but only if he is the same person involved in the former convictions. However, if the statute is applicable in such case it has been fully met. Apparently proper grounds were not set forth in the petition for the free transcript upon which the appeal or writ of error would be sought as required by the statute, but notwithstanding this the trial -court fully complied with the provisions of said'statute with regard to the granting of the request. It is provided under this statute where the request is made that “ * * * the court * * * shall authorize and direct the court reporter to furnish a transcript of the testimony and proceedings of the trial * * * ”. [emphasis supplied] These requirements were fully met and complied with by an order entered of record by the trial court upon the receipt of the request by the petitioner. All the petitioner had to do was to inquire of the court or the court reporter as to why the transcript had not been furnished when promised and it would have been promptly forthcoming in time for an appeal to be perfected. It would no doubt show that he was identified as the same person referred to in the previous convictions and the finding as to this matter by the jury.

The petitioner apparently was not interested in obtaining the transcript he had requested and that had been authorized and directed to be made by the court and promised by the court reporter, but after the four month limitation in which an appeal could be taken to the circuit court he applied to this court for a writ of habeas corpus praying to be released from the penitentiary without further interest in obtaining the transcript.

The petitioner has not been deprived of any right to appeal the proceeding had on the information. On the contrary, he has been granted the right, but failed to pursue it as required of all. other persons in such cases. Therefore, there has been no violation of his constitutional rights under the holding of Griffin v. Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891.

For the reasons stated herein, I would deny the relief sought in toto.