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Leavell v. State

It was not clear from the trial court's order whether it found the defendant to be indigent and, consequently, whether it erred in denying her cost-free transcripts of her DUI trial and a hearing on her motion to suppress.

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After a jury trial, Sharon Leavell was convicted of driving under the influence of a drug to the extent it made it less safe for her to drive OCGA § 40-6-391 a 2 and failure to maintain lane OCGA § 40-6-48. She argues on appeal that the trial court erred in denying her request for transcripts, free of cost, of her trial and a hearing on her motion to suppress; in denying her motion to suppress; and in giving a certain jury instruction. Because we cannot discern from the record whether or not the trial court found Leavell to be indigent – a finding dispositive of her request for cost-free transcripts – we vacate the trial court’s denial of that request and remand the case for the trial court to make a finding on her indigence and to enter a ruling consistent therewith.

On appeal in a criminal case, an indigent defendant “is entitled as a matter of right to a free copy of the transcript of court proceedings in which he has been a party. . . . The right to a free transcript arises regardless of whether the indigent defendant was represented by retained counsel at the time of the trial court proceeding for which the transcript is sought.” Mitchell v. State, 280 Ga. 802 1 633 SE2d 539 2006 citations and punctuation omitted. Whether a defendant is indigent is a matter for the trial court’s discretion. See Thomas v. State, 297 Ga. App. 416, 420 3 677 SE2d 433 2009.

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