On September 5, 2012, another letter was sent by the clerk’s office requesting that the transcript be filed. While it is the responsibility of the appealing lawyer to make sure all transcripts are included, OCGA 5-6-43 requires the clerk to send the record to the appellate court in 5 days after transcripts are filed and twenty days otherwise. Further, if the records are incomplete send them up certifying that it is incomplete. On December 31, 2012, the State filed a motion to dismiss the appeal. A hearing was held on July 24. 2013 on the State’s motion to dismiss but no order was filed nor any transcript of that hearing. In August 2013, a motion for extension of time to file the transcript was filed in the trial court. The court granted the motion because the court reporter indicated that it could not be completed in time.
Delayed appeals are governed by the same analysis applied to Constitutional Speedy Trials under Barker v. Wingo, 407 U.S. 514, (1972) and the same analysis is used. However, such a Due Process claim must be raised at the trial level. Chernowski should have filed a motion in the trial court to have the record completed under O.C.G.A. 5-6-41(f) and raised his Due Process claims at that hearing. Because the Due Process claims from the appeal were not made at the trial court, they are not properly before the appellate court and must be denied.
Wait a minute, the Court of Appeals remanded the case sua sponte (even though not appealed) because of an error in sentencing. Could this be a non-so-subtle invitation to raise the Due Process Appeal delay in the trial court and appeal again? I don’t see why not. I hope Chernowski’s attorney gets the message. Hint, Hint, Wink, Wink, Nudge, Nudge…know what I mean.
-Author: George Creal