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Holman v. State

Court of Appeals of Georgia

October 29, 2014

HOLMAN
v.
THE STATE

Page 615

DUI, etc. Troup Superior Court. Before Judge Simpson.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 616

Dillard, Judge.

Following a trial by jury, Ulysses Holman was convicted of driving under the influence to the extent that he was less-safe to drive (DUI less safe) and serious injury by vehicle. On appeal from these convictions, Holman contends that (1) the evidence is insufficient to sustain his convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. For the reasons set forth infra, we affirm.

1. At the outset, before addressing the facts of this case or Holman's enumerations of error, we note that this Court previously issued an opinion in this appeal on September 9, 2014 (which has since been recalled and vacated), in which we also affirmed Holman's convictions, albeit for a different reason. In that original opinion, we based our decision on the fact that in his notice of appeal, Holman did not request that a trial transcript be included as part of the appellate record. And because no transcript was requested, we believed that a transcript had not been transmitted to this Court for our review.

Specifically, we affirmed Holman's convictions in that earlier opinion because OCGA § 5-6-37 dictates that a notice of appeal shall set forth, inter alia, " a designation of those portions of the record to be omitted from the record on appeal," and " [i]n addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal." [1] But here, Holman's notice of appeal stated only that nothing should be omitted from the record on appeal. The notice did not request that a transcript of evidence and proceedings be transmitted to this Court as a part of the appellate record, and, in such a case, we are not at liberty to infer otherwise. Indeed, as our Supreme Court has explicitly held, " [t]he specification that 'nothing' is to be omitted from the record would not infer that the transcript is to be included, since the appellant is [329 Ga.App. 394] required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted." [2]

The apparent absence of the trial transcript in the case sub judice made it impossible for this Court to review Holman's enumerations of error concerning the sufficiency of the evidence, the court's instructions to the jury, and trial counsel's allegedly ineffective assistance.[3] And it is well established

Page 617

that it is the burden of the complaining party to " compile a complete record of whet happened at the trial level, and when this is not done, there is nothing for the appellate court to review." [4] Additionally, when no transcript is included in the record on appeal we " must assume that the evidence was sufficient to support the judgment." [5] We therefore affirmed the judgment of the trial court on this ground.[6]

On September 22, 2014, Holman's counsel belatedly filed a Notice of Intention to Apply for Writ of Certiorari to the Supreme Court of Georgia,[7] rather than filing a motion for reconsideration.[8] On September 30, 2014, Holman--not his counsel--called this Court's clerk's office to make inquiry regarding the reasons for our disposition in the prior appeal and was directed to speak with his counsel regarding same. Nevertheless, following that call, our clerk's office, on its own initiative, discovered that a transcript of proceedings was indeed transmitted to this Court in a prior appeal by Holman.

On March 29, 2012, Case No. A12A1504 was docketed with this Court, and in that case, Holman sought to appeal the same convictions at issue in the case now before us. At that time, Holman filed his [329 Ga.App. 395] appeal pro se and, as is the case in his current appeal, did not specify in his notice of appeal whether or not a transcript of evidence and proceedings were to be transmitted to this Court. Nevertheless, it appears that the lower court sua sponte transmitted all available transcripts despite Holman's failure to comply with OCGA § 5-6-37.

However, prior to filing an appellate brief in Case No. A12A1504, Holman filed a motion to remand the case to the trial court for the appointment of appellate counsel, which we granted on May 11, 2012; and on that same date, we issued a remittitur to the lower court. Thereafter, in May 2012, the trial court appointed appellate counsel to represent Holman; however, no appeal was filed and a Motion for Out of Time Appeal was granted on January 30, 2013. But still, no appeal was filed until after Holman and the State subsequently entered into a consent order for the filing of an ...


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