Curtis Lee Rogers v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 19, 2021

The Court of Appeals hereby passes the following order: A21A1082. ROGERS v. THE STATE.

In November 2019, after a trial at which he represented himself, appellant Curtis Rogers was convicted of felony forgery. Shortly afterward, appointed counsel, who had served as standby at trial, filed a motion for new trial and a motion to withdraw (on the ground that Rogers planned to assert standby counsel’s ineffectiveness on appeal). Rogers filed a timely pro se notice of appeal.

In March 2020, Rogers filed an affidavit of poverty and requested a copy of his file, including the trial transcripts. The trial court sent Rogers the file, but did not include the transcripts, which were not filed below until the following month. In February 2021, the trial court dismissed Rogers’s outstanding pro se motions as nullities, granted counsel’s motion to withdraw, and transmitted the record, including transcripts, to this Court. The trial court did not rule on the motion for new trial.

We have granted Rogers three extensions of time to file an initial brief because he has not yet received the trial transcript. The trial court clerk has indicated, however, that he is awaiting a request from Rogers before sending him that transcript.

In criminal cases, an indigent, on appeal, is entitled as a matter of right to a free copy of the transcript of trial court proceedings in which he has been a party. Motions for new trial and other post-trial motions are part of the “proceedings” contemplated by this rule. The right to a free transcript arises regardless of whether the indigent defendant was

represented by retained counsel at the time of the trial court proceeding for which the transcript is sought.

(Citations and punctuation omitted.) Mitchell v. State, 280 Ga. 802, 802 (1) (633 SE2d 539) (2006).

The trial transcript “is necessary to allow [Rogers] to pursue [his] pending appeal[.]” Mitchell, 280 Ga. at 802 (1). We therefore REMAND the case to the trial court with direction that it send Rogers a complete trial transcript. The trial court shall also promptly hold a hearing as to whether Rogers wants or is entitled to new appellate counsel (for the purpose of filing an amended motion for new trial). Rogers shall have 30 days “from the date of receipt of the transcript” or from the trial court’s resolution of these matters, whichever is later, to “refile [his notice] of appeal[.]” Mitchell, 280 Ga. at 802 (2).

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/19/2021 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.