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Burnsed v. City of Evergreen3/1/2001
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
After a bench trial in the Municipal Court of the City of Evergreen, Donald Keith Burnsed, represented by counsel, was convicted of the misdemeanor offense of driving under the influence of alcohol (DUI). The proceedings were recorded by a court reporter. A transcript of the bench trial is in the record on appeal. On June 15, 1999, the municipal judge ordered Burnsed to pay a $600 fine and $172.50 in court costs. Burnsed moved for a new trial, which the municipal judge denied on August 19, 1999. On September 14, 1999, Burnsed appealed to the Court of Criminal Appeals pursuant to Rule 30.3(c), Ala. R. Crim. P. Sua sponte, the Court of Criminal Appeals dismissed the appeal without an opinion on November 29, 1999. Burnsed v. City of Evergreen (No. CR-99-0044), So. 2d (Ala. Crim. App. 1999) (table). The Court of Criminal Appeals dismissed the appeal on the ground, not raised by the City, that Burnsed had failed to satisfy the requirements of Rule 30.2, Ala. R. Crim. P.:
"An appeal from the district or municipal court shall go directly to the appropriate appellate court:
"(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or
"(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question. (Emphasis added.) See also § 12-12-72, Ala. Code 1975.
In its order dismissing Burnsed's appeal, the Court of Criminal Appeals specifically stated that Burnsed had failed "to show that the transcript in question was prepared by a person duly appointed by the trial court to serve as an official court reporter." Citing Ex parte French, 547 So. 2d 547 (Ala. 1989), the Court of Criminal Appeals stated further, " bsent such an appointment the transcript in question is nothing more than an unofficial record and will not serve as an adequate record for purposes of Rule 30.2(1) of the Alabama Rules of Criminal Procedure unless the City of Evergreen approves of its usage."
In an application for rehearing, Burnsed asserted that, after the Court of Criminal Appeals dismissed his appeal, it should have then transferred his case to the circuit court for a trial de novo. Overruling Burnsed's application for rehearing and denying his Rule 39(k), Ala. R. App. P., motion, the Court of Criminal Appeals stated that it could not transfer the case to the circuit court because the circuit court did not have jurisdiction to hear the case because Burnsed did not file his notice of appeal within 14 days of the denial of his motion for a new trial, as required by Rule 30.1(a), Ala. R. Crim. P. The Court of Criminal Appeals noted that, although Burnsed invoked the jurisdiction of the Court of Criminal Appeals by filing his notice of appeal to the Court of Criminal Appeals 25 days after his posttrial motion was denied (within the 42-day jurisdictional time limit for appealing from municipal court to the Court of Criminal Appeals under Rule 30.3(c)), he failed to invoke the jurisdiction of the circuit court because he filed his notice outside the 14-day jurisdictional time limit for appealing from municipal court to circuit court. The order of the Court of Criminal Appeals invites this Court to amend the jurisdictional time limit in Rule 30.3(c) from 42 days to 14 days so that, when the Court of Criminal Appeals dismisses an appeal from the municipal or district court, it will then have the authority to transfer the case to the circuit court for a trial de novo.
Burnsed has petitioned this Court for certiorari review, which we have granted. T
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