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Toth v. State

Defendant's exclusion of the transcript of the trial court's proceedings from the appellate record precluded review of his claims of error.

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Billy Joe Toth was convicted of DUI per se1 following a jury trial. On appeal, Toth contends that the trial court erred in denying his motion to suppress the breath test evidence. Because Toth chose to exclude the transcript of the trial court’s proceedings from the appellate record, we are unable to review his claim of error. Therefore, we must affirm. The burden rests upon the appellant to ensure that the record includes the issue upon which he seeks review and the trial court’s ruling on such issue. See Pollard v. State , 260 Ga. App. 540, 541 1 580 SE2d 337 2003. “The party alleging harmful error bears the burden of showing it affirmatively by the record.” Citations, punctuation, and footnotes omitted. Pittman v. State , 286 Ga. App. 415, 416-417 650 SE2d 302 2007. “Where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.” Citation and punctuation omitted. Pollard , 260 Ga. App. at 541 1. See also Pittman , 286 Ga. App. at 416-417. In this case, we have no written order reflecting the trial court’s ruling on the motion and no transcript of the evidence presented.2 Consequently, we have no means to review Toth’s claim of error. Under these circumstances, we must assume as a matter of law that the trial court’s decision is correct and affirm.3 Pittman , 286 Ga. App. at 416; Pollard , 260 Ga. App. at 541 1.

Judgment affirmed. Barnes, P.J., and Senior Appellate Judge G. Alan Blackburn, concur .

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