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Gormandy v. City of Mobile8/31/2001
:
"`(b) Dismissal of appeal. Where appellant, without sufficient excuse, does not appear for trial de novo when called for trial, the court shall dismiss the appeal, order the bond forfeited, and remand the case to the court appealed from for enforcement of the lower court judgment ....
"`Upon the request of the appellant, the judge of the court to which an appeal has been taken shall enter an order dismissing the appeal, provided the appellant tenders payment of the costs and fines imposed by the court appealed from at the time the request for dismissal is made; and provided, further, that the appellant submits himself or herself to the sheriff or, in appeals from municipal court, to the chief of police to begin serving any sentence of imprisonment previously ordered.'" Ex parte Hilburn, 591 So.2d 8, 12 (Ala. 1991), quoting Rule 30.5, Ala.R.Crim.P. (Emphasis added.)
In coming to this conclusion, the Court in Ex parte Hilburn relied on § 12-14-70, which provides in pertinent part:
"(a) All appeals from judgments of municipal courts shall be to the circuit court of the circuit in which the violation occurred for trial de novo.
"....
"(f) Upon failure of an appellant to appear in the circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal ...." (Emphasis added.)
The Court found that if the circuit court has no discretion to retain the case upon the nonappearance of a defendant, then it also lacks the discretion to retain the case if the defendant appears and affirmatively seeks the dismissal of the appeal and a remand of the case to the municipal court. To hold otherwise would encourage defendants to "fail to show when their case is called for trial in order for their appeal to be dismissed." Ex parte Hilburn, 591 So.2d at 11.
The City of Mobile acknowledges in its brief that Ex parte Hilburn states that a judge "shall enter an order dismissing the appeal," but contends that a prerequisite to the dismissal is that all costs and fines imposed by the Mobile municipal court must first be tendered. The City argues that the record does not indicate that Gormandy tendered payment of the costs and fines imposed by the municipal court when he sought to dismiss his appeal, and, therefore, it argues, the circuit court correctly denied Gormandy's motion to withdraw his appeal. "Where the appellant fails to include pertinent portions of the proceeding in the record on appeal, this court may not presume a fact not shown by the record and make it a ground for reversal." Carden v. State, 621 So.2d 342, 345 (Ala. Crim. App. 1992). It is the appellant's duty to provide this court with a complete record on appeal, and we will not predicate error on a silent record. See Wilson v. State, 727 So.2d 869 (Ala. Crim. App. 1998). We cannot determine from the record whether Gormandy has tendered his payment of the costs and fines imposed by the municipal court; therefore, we remand this case to the circuit court to make findings of fact as to whether the costs were tendered.
This cause is remanded to the circuit court for findings of fact regarding the tender of payment of municipal court fines and costs. A return to remand should be filed within 21 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
McMillan, P.J., and Shaw and Wise JJ., concur. Baschab, J., concurs in the result.
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