
    Wyatt Cooper WILSON, Jr. v. CITY OF PRATTVILLE.
    3 Div. 883.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    On Return to Remand July 31 and Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.
    Certiorari Denied March 22, 1985 Alabama Supreme Court 84-442.
    
      John Nile McGee, Jr., Montgomery, for appellant.
    J. Myron Smith, City Prosecutor, City of Prattville, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This ease has been submitted on briefs of the parties wherein they agree that the crucial issue is whether the trial court was in error in dismissing this appellant’s appeal from the judgment of conviction and sentence of the Municipal Court of Pratt-ville for the offense of driving under the influence of alcohol. The controlling law on the subject is:

“Upon failure of an appellant to appear in circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal.... The circuit court may, on motion of defendant made within 30 days of the order of dismissal, set aside the dismissal and other orders and reinstate the appeal on such terms as the court may prescribe, for good cause shown by defendant.” Code of Alabama 1975, § 12-14-70(f).

The record before us shows that within thirty days from the dismissal, defendant’s counsel filed a motion to set aside the dismissal and reinstate the appeal and the following affidavit in support of the motion:

“The cause was set for jury trial in Au-tauga Circuit Court at 9:00 A.M. on April 29, 1983. The automobile that Defendant and his lawyer was riding in stopped about one quarter to one third of a mile short of the courthouse and the two had to walk a long distance and arrived at the courthouse about 9:23 A.M.
“The court told defense counsel that it had dismissed the appeal about 19 to 20 minutes after nine. Defense counsel between 25 and 30 minutes after nine A.M. offered an oral motion based on these facts. He was told by the court that this would not be accepted but that counsel could make a motion for a new trial within thirty days.”

After an apparent hearing of the motion, the Circuit Court of Autauga County rendered an order in pertinent part as follows:

“And upon consideration it is held that the said Motion is not well taken. It is therefore, ordered, adjudged and decreed by the Court, that said Motion be and the same is hereby denied.”

There is no court reporter’s transcript as to anything that occurred at the time the court rendered the order dismissing the appeal from the Municipal Court, at the time of the arrival of defendant and his attorney for the trial of the case, or at the time of any hearing of the motion to set aside the order of dismissal. In this state of the record before us, we cannot determine the crucial issue now presented.

The cause should be remanded to the Circuit Court with directions that the record be supplemented with any and all pertinent court reporter’s transcript of the proceedings in the Circuit Court of Autau-ga County and, in the absence or unavailability of the reporter’s transcript as to such pertinent proceedings, the trial judge shall set forth briefly his recollection as to all pertinent facts. It is further directed that the trial court, if, but only if, it deems it necessary or advisable, shall conduct a hearing, with due notice beforehand to the parties, as to pertinent facts relative to whether good cause was ever shown by the defendant within the time required by Code § 12-14-70(f) for defendant’s failure to appear at the time the case was “called for trial.” The trial court shall make a return to this order of remandment with notice to each of the parties. Either party aggrieved thereby will have fourteen days thereafter within which to file a brief and the opposing party will then have seven days to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur, except BOWEN, P.J., who dissents with an opinion.

BOWEN, Presiding Judge,

dissenting.

The circuit court, as authorized by Alabama Code Section 12-14-70 (1975), dismissed Wilson’s appeal from Municipal Court when Wilson and his attorney failed to appear when the case was called for trial. Wilson’s motion to reinstate was denied after testimony and argument were presented. The record before this Court does not contain that testimony and argument. Since it is appellant Wilson’s duty and responsibility to present a correct and complete record to this Court for review, and since Wilson has failed in this respect, this Court should not remand this cause directing Wilson to do what he could and should have already done.

Since there is nothing in the record to show an abuse of the trial judge’s discretion, it must be presumed that the judge did not abuse that discretion.

ON RETURN TO REMAND AND ON APPELLANT’S “MOTION TO SUSPEND THE RULES AND REMAND THE CAUSE FOR A TRIAL BY JURY.”

LEIGH M. CLARK, Retired Circuit Judge..

On March 19, 1984, the Clerk of the trial court, Autauga Circuit Court, filed with the Clerk of this Court a Supplemental Transcript, which has been treated as a Return to Remand and in which is contained the certificate of an official court reporter for the Nineteenth Judicial Circuit as follows:

“I, Norma L. Martin, the undersigned Court Reporter of the Nineteenth Judicial Circuit, hereby certify that the appeal in the above case was dismissed on April 29, 1983, and the case was remanded to the Municipal Court of the City of Prattville. The Appellant-Defendant filed a motion for a new trial on May 26, 1983. The motion for a new trial was set for hearing on July 27th, 1983 and on that date oral testimony was taken before the Court. I took the oral testimony as Court Reporter. After the motion to have the case reinstated was denied on July 27th, 1983 and notice of appeal was given I was never requested or instructed by anyone to transcribe the oral testimony taken down on July 27th, 1983. Therefore, I have not transcribed said oral testimony.
“This certificate is made in answer to the remand of January 31st, 1984, by the Alabama Court of Criminal Appeals.”

On April 2, 1984, appellant’s attorney filed with the Clerk of the Alabama Court of Criminal Appeals the following motion, which showed service of a copy thereof upon the attorney for the appellee:

“Appellant moves this Honorable Court to suspend the Rules and reverse and remand this cause to the Circuit Court for a trial by jury or on the following grounds:
“1. This Honorable Court issued an order remanding this cause to the Circuit Court of Autauga County, Alabama with directions A, that the record be supplemented with all pertinent court reporter’s transcript as to any pertinent proceedings and B., if unavailable, the trial judge was to set forth briefly his recollection as to such facts. C., said order further directed the trial court to, if it deemed it necessary or advisable, to conduct a hearing as to the pertinent facts and to make a return to this order of remandment with notice to each party. Movant humbly suggests to this Honorable Court that none of the directions made in this order have been followed by the trial court.
“2. Only a statement by the court reporter that she has not been requested to furnish transcript was filed in this Court. Movant urges that this is not a compliance with this Court’s order of remandment with directions to the trial court that was issued by this Court on January 31, 1984.
“WHEREFORE, movant humbly requests that this cause be reversed and remanded for a jury trial to protect his rights to a trial by jury, as guaranteed by the constitutions of the State of Alabama and the United States of America.”

We had hoped that we would be favored by authoritative information that would enable us to determine whether, in our opinion, the trial court was in error in overruling defendant’s motion for a new trial and reinstatement of his appeal from the Municipal Court of the City of Pratt-ville, which we could not correctly determine, we thought, without a court reporter’s transcript of the hearing or some satisfactory substitute therefor. Neither party aids us by any effort to make it clear as to why we do not have a court reporter’s transcript as to the hearing of the motion for a new trial. The court reporter’s certificate that she “was never requested or instructed by anyone to transcribe the oral testimony taken down” at that hearing, is an adequate explanation of her reason for not having transcribed it, but it does not explain the failure of someone else, particularly, the appellant, to request such transcript, which emphasizes the wisdom of the dissenting opinion of Presiding Judge Bowen in saying that “This Court should not remand this cause directing Wilson to do what he could and should have already done.” At the time of the opinion on original submission, the writer of the opinion was not certain that there was ever any reporting of the hearing on the motion for new trial from which an accurate transcript could be made. As we are now assured that there was, we are of the opinion that appellant should be allowed sixty more days to make appropriate arrangements with the court reporter for her to transcribe the pertinent proceedings on the hearing of defendant’s motion for a new trial and for their certification to this Court as a further supplemental record in this cause, and that, if he fails to do so and fails to present an adequate excuse for not doing so, the judgment of the trial court should then be affirmed. Appellant’s “Motion to Suspend the Rules and Remand the Cause for a “Trial by Jury” should be denied.

APPELLANT’S “MOTION TO SUSPEND THE RULES AND REMAND THE CAUSE FOR A TRIAL BY JURY” DENIED; SUBMISSION ON RETURN TO REMAND CONTINUED TO OCTOBER 15, 1984.

All the Judges concur, except BOWEN, P.J., who dissents.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

On September 17, 1984, the Clerk of the Circuit Court of Autauga County filed a Supplemental Transcript that includes the court reporter’s transcript of the hearing on July 27, 1983, of the motion of this appellant to reinstate his appeal from the judgment of the Circuit Court dismissing this appellant’s appeal from his judgment of conviction in the Municipal Court of Prattville, Alabama, of driving a motor vehicle under the influence of alcohol. The court reporter’s transcript discloses that this appellant was present throughout the hearing and was attended by his attorney, the same attorney who has represented him throughout the pendency of this case in the Circuit Court of Autauga County and who has continued to represent him on the appeal to this Court.

According to the court reporter’s transcript, this appellant testified exhaustively as to the circumstances attending the journey by him and his attorney from Montgomery to Prattville in the attorney’s automobile. In addition to the testimony of this appellant as to the circumstances of his not appearing when his case was called for trial in the Circuit Court, there was a rather profuse colloquy among his attorney, the attorney for the City of Prattville, and the trial judge on the subject, as to which there was little disagreement and no objection by either party as to the method apparently adopted by each party in endeavoring to show whether the trial court was justified in dismissing the appeal from the judgment of the Municipal Court. Some of the pertinent testimony of appellant was as follows:

“Q. You concluded the car ran out of gas?
“A. I believe it did.
“Q. Okay. Now, isn’t it true, Mr. Wilson, that it only takes about five minutes to walk from the courthouse to where the car was stopped?
“A. It would only take me about five minutes.
“Q. Right. But on this occasion you say the car ran out of gas at about ten minutes to nine, and it was thirty minutes later when you got to the courthouse?
“A. Approximately.”

The trial judge prefaced his order denying this appellant’s motion for reinstatement of the appeal from the Municipal Court of Prattville as follows:

“THE COURT: Because, as Mr. Smith [Attorney for the City] says, that this was the only case set for trial that morning [a Friday morning]. All the jurors were here at 9:00 o’clock, the City Attorney was here, the Judge, Clerk — everybody but the defendant and his attorney. Shortly after 9:15, on hearing nothing, the court dismissed the jury for the week and discharged them. The Clerk, some of the lawyers, the Judge and Reporter were back in the Judge’s office finishing up and things of that sort, when Mr. McGee and Mr. Wilson arrived.”

We are now convinced by the court reporter’s transcript of the hearing of appellant’s motion to reinstate the appeal from the judgment of conviction of the Municipal Court of the City of Prattville that the trial court’s dismissal of said appeal was not an abuse of the discretion vested in the trial court. It follows that the judgment of the trial court should be affirmed.

AFFIRMED.

All the Judges concur.  