Davenport v. Winn

MOREMEN, Judge. Petitioner, Maceo Davenport, a prisoner, has petitioned this Court to issue a writ of mandamus ordering the Bracken Circuit Court to furnish him with a transcript of record of a proceeding had under RCr 11.42 so that he may perfect his appeal. It is averred that a hearing was held on September 10, 1964, on his motion to vacate a judgment of conviction and that after a hearing the petitioner’s motion was dismissed. It is further alleged that he was informed that he would be supplied with a transcript of record of the hearing. No response has been filed to this petition. We have no information as to what transpired at the trial in the circuit court. We are not informed whether the motion under RCr 11.42 was adjudged to be insufficient on its face, or whether counsel was appointed and a full dress hearing was had. In any event, the petitioner is entitled to a transcript of the proceedings at the RCr 11.42 hearing if he seeks to appeal it. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 894, followed in Jones v. Breslin, Ky., 385 S.W.2d 71, decided December 11, 1964, it was held that an indigent person is entitled to a free transcript in order to perfect his appeal. See also Bauer v. Pound, Judge, Ky., 385 S.W.2d 167, this day decided. The writ therefore should issue. In Kraus v. Ropke, Ky., 385 S.W.2d 162, this day decided, it was held that fairness required, when a motion under RCr 11.42 is ruled on by the Court, the movant be notified by sending him a copy of the order, and that the time for appealing does not commence to run until the order is sent to him. Similarly, in this case where a prisoner has been denied the opportunity to perfect his appeal in time because of the failure to receive a transcript of the record, the time for filing record on appeal will not commence until he has received a copy of the record. The petition is granted.