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Fitzpatrick v. State

The trial court failed to determine whether the unreasonable delay in the filing of the transcript was inexcusable or was caused by the defendant.

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Regence Fitzpatrick was convicted of shoplifting on December 13, 2000. Fitzpatrick filed a timely motion for new trial, which was denied on May 16, 2002. Fitzpatrick, who is indigent, then filed a notice of appeal on May 22, 2002, and requested that nothing be omitted from the record. When, after nineteen months, Fitzpatrick failed to file a transcript, the state filed a motion to dismiss Fitzpatrick’s notice of appeal on December 29, 2003. In response to the motion, Fitzpatrick’s public defender asserted that the court reporter failed to respond to his attempts to obtain the transcript. The trial court granted the state’s motion and Fitzpatrick appeals. “A trial court may dismiss an appeal for failure to file a transcript only if it determines ‘after notice and opportunity for hearing,’ that ‘there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by the appealing party.’ OCGA § 5-6-48c.” Punctuation and footnote omitted. Johnson v. State, 259 Ga. App. 452 1 576 SE2d 911 2003. This Court will not disturb the lower court’s finding on such a motion to dismiss absent an abuse of discretion. Quarles v. Saddleback Ridge Cond. Assoc. , 266 Ga. App. 467 597 SE2d 460 2004.

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