Cox v

State, 242 Ga. App. 334, 528 S.E.2d 871 (2000). Jury instruction corrected by a trial transcript amended to correct a typographical error gave an accurate statement of the applicable law and was not error. Clanton v. State, 208 Ga. App. 669, 431 S.E.2d 453 (1993). Motion to perfect record not proper. — Defendant’s filing of a ‘‘motion to perfect the record,’’ offering the testimony of a witness as to what transpired during a portion of the trial, was not a proper vehicle for perfecting the record pursuant to O.C.G.A. § 5-6-41. Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994). Supplementation of record after appellate court renders decision. — Once the appellate court renders a decision, O.C.G.A. § 5-6-48, under which the action originates in the appellate court, becomes the exclusive method for supplementing the record. Therefore, the appellate court’s refusal to entertain, on motion for rehearing under subsection (f ) of O.C.G.A. § 5-6-41, under which the action originates in the trial court, the supplementation of the record was not error. However, in holding that what the defendant wore at trial, not shown in the record other than a reference to ‘‘prison garb,’’ was new evidence and not subject to subsection (f ), the appellate court erred. State v. Pike, 253 Ga. 304, 320 S.E.2d 355 (1984). Subsection (f ) iof O.C.G.A. § 5-6-41 s not to be used after rendition of an appellate court’s decision as a vehicle to secure the grant of a motion for reconsideration or application for certiorari. Once the appellate court renders a decision, O.C.G.A. § 5-6-48 becomes the exclusive method for supplementing the record. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 463 S.E.2d 703 (1995). Written motion to supplement not required. — By participating in the state’s attempt to supplement the record during a hearing on a motion for new trial, a defendant acquiesced in the state’s presentation of the state’s theory that the trial court’s admonition to the defendant of the right to testify was missing from the 683 Page: 684 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Incorrect or Incomplete Transcripts (Cont’d) record, and it was not necessary that the state file a written motion under O.C.G.A. § 5-6-41(f ) to supplement the record. State v. Nejad, 286 Ga. 695, 690 S.E.2d 846 (2010). Ordering trial clerk to submit omitted requests to charge. — Requests to charge are of such importance in an appeal when the trial court’s giving of a charge is cited as error that the appellate court will order the clerk of the trial court to submit that portion of the trial record to the appellate court pursuant to subsection (f ) of O.C.G.A. § 5-6-41, and a motion to strike the state’s supplementation of the record to include the requests on the ground that it is tardily filed will be denied. Vick v. State, 166 Ga. App. 572, 305 S.E.2d 17 (1983). Indigent appellant must take steps to provide transcript. — Although the trial court declared the appellant indigent, and directed the state to provide the appellant with a trial transcript, the appellant apparently took no steps, by making timely request or otherwise, to insure that the pretrial hearing regarding the appellant’s motion in limine was duly recorded, nor did the appellant request that the trial court reconstruct this hearing. In the absence of this transcript, the appellate court could not consider the appellant’s enumerated error as to the denial of the appellant’s motion. Jones v. State, 187 Ga. App. 25, 369 S.E.2d 314 (1988). Improper supplementation. — Supplementation of the record by both the defendant and the state by appending attachments to their respective briefs was not an authorized method; the appellate court cannot consider the factual assertions of the parties appearing in briefs when the evidence does not appear on the record. Leatherwood v. State, 212 Ga. App. 342, 441 S.E.2d 813 (1994). Lost transcripts. — Plaintiff ’s motion for a new trial because transcripts and exhibits were lost or destroyed by the court reporter was properly denied when the trial court followed the proper procedure in recreating a narrative transcript, and evidence in the available transcript Date: 06/14/13 Time: 12:53:27 5-6-41 and the narrative transcript supported the jury’s verdict. Xiong v. Landford, 226 Ga. App. 126, 485 S.E.2d 534 (1997). Defendants failed to meet defendants’ burden to affirmatively show error by the record when the defendants failed to include in the record those items that would enable the court to perform an objective review of the evidence and proceedings, pursuant to subsection (c) of O.C.G.A. § 5-6-41, by not including a transcript or a statutorily authorized substitute. City of Byron v. Betancourt, 242 Ga. App. 71, 528 S.E.2d 841 (2000). Entirety of record required. — Trial court’s denial of defendant’s motion to vacate a sentence was affirmed because the defendant did not request that the entire record be transmitted to the appellate court, and, therefore, the appellate court was required to assume that the trial court ruled correctly. Arnold v. State, 276 Ga. App. 680, 624 S.E.2d 258 (2005). Failure to correct inaccurate transcript. — Inmate’s habeas petition alleging a defective plea was properly denied because, although the inmate pled at a group hearing, the transcript showed that the defendants stated that the defendants knew the rights the defendants were giving up; among other things, the inmate did not pursue any remedy in the trial court to correct an inaccurate transcript pursuant to O.C.G.A. § 5-6-41(f ). Bullard v. Thomas, 285 Ga. 545, 678 S.E.2d 897 (2009). Stipulated Transcripts Submission of transcript prepared by recollection. — Subsections (c), (d) and (g) authorize submission of transcript prepared from recollection only when trial has not been reported or when, for some other reason, actual transcript is not obtainable. Harrison v. Piedmont Hosp., 156 Ga. App. 150, 274 S.E.2d 72 (1980). State’s motion to dismiss a defendant’s appeal was denied; a transcript prepared by recollection was properly before the appellate court, because according to O.C.G.A. § 5-6-41(d), (f ) and (g), a transcript prepared from recollection did not need judicial approval or intervention unless the parties could not agree on what transpired, and here, the defendant and 684 Page: 685 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-41 Date: 06/14/13 Time: 12:53:27 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS the state agreed on the transcript prepared by recollection and both parties signed the agreement, and according to O.C.G.A. § 5-6-41(g), the agreement of the parties thereto or their counsel entitled such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter. Branton v. State, 258 Ga. App. 221, 573 S.E.2d 475 (2002). Defendant wishing to establish that record is in error. — If the defendant in misdemeanor case wishes to establish that record as the record appears was in error, the defendant should have availed oneself of right of construction of record from recollection under subsection (g). Williams v. State, 140 Ga. App. 87, 230 S.E.2d 94 (1976). When transcript is unavailable, agreed upon statement of facts in brief may suffice. — In instances when transcript is unavailable and such facts as are necessary for disposition are stated in brief, and the state concedes such statement is substantially correct, the appellate court may reach a decision on agreed upon facts. Holzmeister v. State, 156 Ga. App. 94, 274 S.E.2d 109 (1980). Judicial approval required. — When a stipulation approved by both counsel does not have attached thereto approval by the trial judge, which is clearly required by subsection (i) of O.C.G.A. § 5-6-41, the appellate court has no authority to consider the enumerations of error as having been raised in the trial court in accordance with the statements contained in the stipulation if the appellate court must review the evidence submitted at trial. Under the circumstances, the appellate court must affirm the judgment. Elliott v. Georgia Baptist Convention, 165 Ga. App. 800, 302 S.E.2d 714 (1983). Appellate court affirmed the trial court’s award of summary judgment, as there was no transcript of the hearing on the motion, and the plaintiff had presented evidence at the hearing; furthermore, no narrative transcript was available under O.C.G.A. § 5-6-41(g), as the trial judge made clear that the trial judge could not recall what transpired at the 5-6-41 hearing. Tanks v. Greens Owners Ass’n, 281 Ga. App. 277, 635 S.E.2d 872 (2006). Submission requirements. — There is no authority for counsel to file such stipulation in appellate court, and effort of counsel to do so is a nullity. Martin v. Department of Pub. Safety, 226 Ga. 723, 177 S.E.2d 243 (1970); Freeman v. State, 215 Ga. App. 341, 450 S.E.2d 346 (1994). Stipulated transcript is subject to same requirements regarding time of filing as transcript by court reporter, that is, that it be filed with clerk of lower court within 30 days of filing of notice of appeal in absence of order of lower court extending time for such filing. Ponce De Leon Properties, Inc. v. Fulton Cotton Mills, 116 Ga. App. 205, 156 S.E.2d 487 (1967). Trial court’s certificate is a final determination of what took place on trial of case. Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969). Trial court is final arbiter of any differences in preparation of record. Miller v. State, 150 Ga. App. 597, 258 S.E.2d 279 (1979); Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981); Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324 (1992), cert. denied, 203 Ga. App. 907, 416 S.E.2d 324, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992); Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994). Any issue as to correctness of the record is to be resolved by the trial court for that court retains jurisdiction even after the case is docketed in the appellate court to add additional record. Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981). Trial court controls determination of final record and may supplement record. — Subsection (f ) makes clear that the trial court controls determination of final record on appeal, and may even supplement record designated by parties on the party’s own motion. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977). When parties disagree regarding omissions from transcript. — When parties are unable to agree on stipulation as to that which was omitted from transcript, the appellate court is restricted to consider only facts stated in trial judge’s certificate. Firestone v. Walker, 116 Ga. 685 Page: 686 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Stipulated Transcripts (Cont’d) App. 316, 157 S.E.2d 509 (1967); Elliott v. Flewellyn, 174 Ga. App. 486, 330 S.E.2d 185 (1985). Judicial approval required. — When the trial court did not approve the plaintiff ’s motion to certify a transcript which the plaintiff prepared from memory and which the defendants contested, the decision was final and nonreviewable. Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995). Trial court’s disapproval of transcript prepared by appellant bars transcript’s use. — When proposed transcript prepared by appellant is disapproved by the trial court, this is sufficient to bar the transcript without necessity of showing that appellee formally objected to the proposed transcript. Burns v. Barnes, 154 Ga. App. 802, 270 S.E.2d 57 (1980); Welch v. Mercer, 165 Ga. App. 776, 302 S.E.2d 629 (1983). Statement of testimony approved by neither opposing counsel nor trial court. — Statement of testimony at trial submitted by defense counsel and approved by neither opposing counsel nor trial court may not be considered by appellate court. Parker v. State, 154 Ga. App. 668, 269 S.E.2d 518 (1980). When the state refused to stipulate to the defendant’s transcript because the witnesses were unable to remember their testimony and the trial judge indicated on the front of the proposed stipulation that the trial judge did not remember what transpired at the trial, the appellate court could not consider the defendant’s challenge to the sufficiency of the evidence. Wright v. State, 215 Ga. App. 569, 452 S.E.2d 118 (1994). Amendment of brief prepared by appellee’s counsel and assented to by appellant’s counsel. — When evidence was not reported at trial, but appellee’s counsel prepares a brief of evidence, which was assented to by counsel for appellant, there is no error in court allowing and approving amendment to brief over objection of counsel for appellant. Kenner v. Whitehead, 115 Ga. App. 760, 156 S.E.2d 136 (1967). Trial court’s recreating of court’s own transcript is not subject to review Date: 06/14/13 Time: 12:53:27 5-6-41 so long as the transcript satisfies requirements of section of being a transcript of evidence (as opposed to conclusions of fact). Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975). Options of judge in recreating transcript. — When trial judge acts under this section to recreate transcript, the jduge may do so by comparing submissions of parties, or by approving (with changes in accord with court’s recollection) submission of one party or the other, or the judge may recreate a transcript by the judge’s own composition. Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975). Judge’s certification of party’s summary. — In absence of agreement by parties, trial court is under no obligation to certify either party’s summary of testimony unless it be in accord with the party’s own recollection of the evidence. Griggs v. Griggs, 234 Ga. 451, 216 S.E.2d 311 (1975). Videotape. — Under O.C.G.A. § 5-6-41(f ), the appellate court could consider alleged error regarding the trial court’s failure to redact portions of a videotape used at trial even though the videotape was not part of the record on appeal when the parties stipulated to the contents of the disputed portion of the videotape. Priebe v. State, 250 Ga. App. 725, 553 S.E.2d 5 (2001). Record insufficient to permit appellate review. — Defendant’s Batson challenge failed because the defendant did not satisfy the defendant’s burden under O.C.G.A. § 5-6-41 to have the record completed; the recollections of the defendant and the state about what happened in jury selection did not provide a basis for appellate review as colloquies between court and counsel and argument of counsel were not competent evidence of the facts observed therein and did not suffice to make a proper record of facts required to establish a prima facie case of discrimination. Acey v. State, 281 Ga. App. 197, 635 S.E.2d 814 (2006). Action did not comply with the procedures governing the preparation of the record for appeal, O.C.G.A. § 5-6-41(g), because although an insured did not object to the introduction of the affidavit of a 686 Page: 687 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-41 Date: 06/14/13 Time: 12:53:27 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS driver’s lawyer attesting to the trial court’s voir dire procedures, the methods of preparing a transcript by recollection as set out in O.C.G.A. § 5-6-41 were not followed; the court of appeals could not consider the lawyer’s unilateral attempt to provide a potentially biased account of what transpired in the trial court. Sibley v. Dial, 315 Ga. App. 457, 723 S.E.2d 689 (2012). Expenses of Recordation and Transcription Any party has absolute right to have case reported at own expense in all cases. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974). Court not required to record proceedings. — While any party may, as a matter of right, have a case reported at that party’s expense, O.C.G.A. § 5-6-41 does not require a trial court in a civil action to have the proceedings and evidence reported by a court reporter. Finch v. Brown, 216 Ga. App. 451, 454 S.E.2d 807 (1995). Notice of right to have case reported. — Trial judge is not obligated to inform parties of their right to have case reported at their own expense under subsection (j). Liberty Loan & Thrift Corp. v. Meeks, 115 Ga. App. 846, 156 S.E.2d 172 (1967); Gunter v. National City Bank, 239 Ga. 496, 238 S.E.2d 48 (1977). Parties must bear transcription costs in civil cases and a trial court did not err in denying a request for public funds to cover transcription costs of a summary judgment hearing. Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995). When the defendant does not offer to pay for recordation, subsection (j) is not applicable. Newell v. State, 237 Ga. 488, 228 S.E.2d 873 (1976). Nonindigent appellant failing to have trial reported at own expense under subsection (j) must accept consequences, including possibility that record adequate for appeal cannot be prepared by one of the alternate methods provided by section. Walker v. State, 153 Ga. App. 89, 264 S.E.2d 565 (1980). Cost of obtaining transcript falls on party desiring that the transcript be 5-6-41 transmitted to the appellate court. Stone Mt. Mem. Ass’n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974). While costs of having transcript prepared by court reporter are an expense of appeal, they are not costs of appeal which are recoverable from appellee when the appellant is successful in obtaining a reversal in the appellate court. Stone Mt. Mem. Ass’n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974). Allocation of costs of supplementing record. — If trial court finds that additional portions designated by appellee are necessary to complete record on appeal, costs must be paid by the appellant; only if considered unnecessary on appeal, should costs be taxed against the appellee. Trial court’s decision will not be reversed absent manifest abuse of discretion. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977). Motion to tape record proceedings. — Party has a right to choose not to go to the expense of hiring a court reporter, and may instead make a reasonable request by written motion at the outset of trial to personally tape record the proceedings for aid in the event of a retrial or appeal. King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986). Court’s arbitrary denial of a properly made motion to tape record the trial proceedings does not constitute reversible error unless actual harm to the requesting party is demonstrated. King v. State, 176 Ga. App. 137, 335 S.E.2d 439 (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986). Indigent appellant. — Provision to indigent appellant of transcript of continuance hearing was unnecessary for appeal from denial of motion for continuance when no testimony had been given at hearing. Miller v. State, 165 Ga. App. 487, 299 S.E.2d 174 (1983). No right to reporter services in civil appeal. — Indigent does not have the right to free court reporter services in an appellate, civil proceeding. Quarterman v. Edwards, 169 Ga. App. 300, 312 S.E.2d 643 (1983). 687 Page: 688 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Expenses of Recordation and Transcription (Cont’d) Presumption of propriety of judgment when appellant fails to pay for record preparation. — When the plaintiff failed to pay necessary costs for preparation of a record so that no record was filed on appeal, the trial court’s granting of a summary judgment in quia timet action was presumed to be supported by sufficient evidence and the judgment was affirmed. Vaughan v. Buice, 253 Ga. 540, 322 S.E.2d 282 (1984). No express refusal to pay obtained. — Trial court erred in a civil suit by denying an appealing plaintiff ’s motions for a trial transcript and for a new trial based on not having a transcript as a pretrial order did not qualify as an express ruling that the plaintiff expressly refused to pay for the costs of the transcript. Further, the pretrial order in no way qualified as a ruling invoked at the commencement of the proceedings. Moore v. Ctr. Court Sports & Fitness, LLC, 289 Ga. App. 596, 657 S.E.2d 548 (2008), cert. denied, 2008 Ga. LEXIS 463 (Ga. 2008). Application Supreme Court of Georgia declined to address the defendant’s enumeration challenging the trial court’s ruling on the supplemental issue raised at a hearing to reconstruct the evidence, as the filing of a notice of appeal divested the trial court of jurisdiction to consider that issue. Moreover, while O.C.G.A. § 5-6-41(f ) allowed the trial courts to retain some control over the record on appeal in certain instances, the statute’s purpose was solely to make the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Ruffin v. State, 283 Ga. 87, 656 S.E.2d 140 (2008). Enumeration of error regarding prosecutor’s argument. — When the prosecutor’s argument was not transcribed and counsel for the plaintiff had made no effort to correct or complete the record as provided in the section, enumeration of the error dealing with an alleged improper argument by the prosecutor can- Date: 06/14/13 Time: 12:53:27 5-6-41 not be reviewed. Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976). When closing arguments of the attorneys are not reported, and where the defendant does not supplement the record by any of the approved methods, an enumeration dealing with improper closing argument by the district attorney is deemed abandoned. Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984). With neither an original transcript of the offending portions of the assistant district attorney’s argument nor a transcript prepared from recollection, the appellate court had to presume that the trial court acted correctly. Houck v. State, 173 Ga. App. 388, 326 S.E.2d 567 (1985). Litigant’s failure to arrange for court reporter. — Trial court did not err in denying a bank customer’s motion to record all proceedings in a bank’s action against the customer. The customer had notice of the hearing and could have arranged for a court reporter to be present, and the trial court advised the customer that a court reporter was available. Vadde v. Bank of Am., 301 Ga. App. 475, 687 S.E.2d 880 (2009), cert. denied, No. S10C0624, 2010 Ga. LEXIS 338 (Ga. 2010); cert. denied, 131 S. Ct. 298, 178 L. Ed. 2d 143 (2010). Failure to transcribe certain proceedings. — Trial court did not err in failing to take down certain bench conferences, objections to closing arguments, questions from the jury, and the court’s responses to jury questions because the defendant could not show prejudice from this purported nonfeasance and no attempt was made to amend or to supplement the record. Boone v. State, 250 Ga. App. 133, 549 S.E.2d 713 (2001). Failure to record telephonic hearing. — Driver’s claim that the trial court erred in denying the driver’s motion for continuance based on the driver’s expert’s unavailability during the week of trial was not preserved for review because the driver did not have the telephonic hearing of the motion transcribed or otherwise complete the record under O.C.G.A. § 5-6-41(f ). Pointer v. Roberts, 288 Ga. 150, 702 S.E.2d 130 (2010). 688 Page: 689 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-41 Date: 06/14/13 Time: 12:53:27 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Failure to order reconstruction. — Because the defendant did not have the record completed by reconstruction, the appellate court could not determine that any harm was done by the failure to record bench conferences. Atkins v. State, 253 Ga. App. 169, 558 S.E.2d 755 (2002). Motion to establish transcript properly denied. — In a case involving a dispute over an estate, the trial court did not err by denying an administrator’s motion for a transcript of the bench trial as the record indicated that the administrator, and the opposing side, wanted to proceed with the trial without a court reporter as neither wanted to incur the cost and, therefore, waived the right to have one reconstructed. Barker v. Elrod, 291 Ga. App. 871, 663 S.E.2d 289 (2008). Failure to record evidence produced when tape was played. — Defendant was not prejudiced below or on appeal by the failure of the court reporter to record evidence produced when a tape was played, when each member of the jury, and the defendant’s counsel, had a copy of a transcript of the tape, and the transcript was admitted in evidence without objection. Royal v. State, 189 Ga. App. 756, 377 S.E.2d 526 (1989). Failure to have record completed. — Defendant waived any error in the admission of photographs, admitted over defendant’s objection, as defendant failed to place the basis for the objection on the record or to have the record completed under O.C.G.A. § 5-6-41(f ). Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005). While the trial judge might require the parties to have the proceedings reported, even if such was done, it remained the appellant’s duty to have the transcript prepared for purposes of an appeal; hence, a claim that the probate court erred in not ordering that a record be made of the hearings lacked merit. LaFavor v. LaFavor, 282 Ga. App. 753, 639 S.E.2d 633 (2006). Supreme court could not review the defendant’s claim that the trial court set pretrial bond in an excessive and unreasonable amount because the defendant failed to have the record completed pursuant to O.C.G.A. § 5-6-41; testimony at the hearing on the motion for new trial was 5-6-41 not a sufficient substitute for a transcript, and without a transcript of the bond hearing or a statutorily authorized substitute, the supreme court had to assume that the trial court’s judgment was correct. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011). Section precludes use of § 9-11-43(b) to cure absence of transcript. — Because of O.C.G.A. § 5-6-41, affidavit, deposition, and oral testimony provisions of O.C.G.A. § 9-11-43(b), pertaining to hearing of motions based on facts not appearing of record, cannot be used to cure absence of transcript of proceedings for post-trial motions or for appellate review. Wall v. Citizens & S. Bank, 274 Ga. 216, 274 S.E.2d 486 (1981). Amendment of judgment is not a means of bringing evidence to appellate court. — Although amendment to judgment of court, sitting without jury, adding thereto certain statements, findings of fact and conclusions of law, is authorized by Ga. L. 1970, p. 170, § § 9-11-52, an amendment is not an authorized means of bringing evidence to an appellate court on appeal under this Ga. L. 1965, p. 18, § 10. Chapman v. Connor, 138 Ga. App. 518, 226 S.E.2d 625 (1976). Duty of appellant who states in notice of appeal that transcript will be transmitted. — Appellant who states in notice of appeal that transcript is to be transmitted as part of appellate record is statutorily mandated to cause court reporter to prepare and file an original and one copy of transcript with clerk of trial court together with court reporter’s certificate attesting to correctness thereof within 30 days after filing of notice of appeal unless time is extended as provided in Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39). State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980). Brief cannot serve as record or transcript for demonstrating error or for supporting claim of error. Holzmeister v. State, 156 Ga. App. 94, 274 S.E.2d 109 (1980). Plaintiff ’s attempt to supplement the record with affidavits from plaintiff ’s attorneys stating that an oral request for qualification of prospective jurors was made prior to jury voir dire did not comply with the dictates of subsection 689 Page: 690 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Application (Cont’d) (f ) of O.C.G.A. § 5-6-41, and thus created no record evidence for purposes of appeal. Hardy v. Tanner Medical Ctr., Inc., 231 Ga. App. 268, 499 S.E.2d 121 (1998). Addendum to a court order containing findings of fact in a child custody proceeding could not substitute as a trial transcript because the addendum was not prepared in accordance with O.C.G.A. § 5-6-41. Burger v. Krueger, 224 Ga. App. 179, 480 S.E.2d 230 (1996). Litigant cannot obtain recordings from reporter and employ a typist to transcribe recordings. — There is no duty on litigant to take recordings of evidence from reporter and have the recordings transcribed by typists employed by a litigant. In fact, such a practice cannot be allowed. The reporter has a duty to give a correct report of proceedings on the trial, and must certify to the correctness of such transcript under subsection (e) of this section. Diamond v. Liberty Nat’l Bank & Trust Co., 228 Ga. 533, 186 S.E.2d 741 (1972). Delivery by designated agent. — Under subsection (e), required delivery of transcript to clerk may be by designated agent. Shield Ins. Co. v. Kemp, 117 Ga. App. 538, 160 S.E.2d 915 (1968). Last minute request for reporter. — Motion for continuance should be granted when request for court reporter was made one day in advance but none was available on day of trial. Massey v. State, 127 Ga. App. 638, 194 S.E.2d 582 (1972). When reporter’s hearing disability causes transcription errors. — When the defendant satisfactorily shows that due to reporter’s hearing disability, the corrected transcript is not true, complete, and correct, the trial court errs in not granting motions to have another court reporter transcribe tapes. Wilson v. State, 246 Ga. 672, 273 S.E.2d 9 (1980). When failure to record motion for new trial and ruling thereon is harmless error. — In absence of allegation that transcript is inaccurate or that a dispute exists as to the court’s ruling, failure of the court reporter to record a motion for a new trial and ruling is harmless error. Zachary v. State, 150 Ga. App. Date: 06/14/13 Time: 12:53:27 5-6-41 388, 258 S.E.2d 158 (1979), aff ’d, 245 Ga. 2, 262 S.E.2d 779 (1980). No requirement that trial judge order transcription of all habeas hearings. — Former Code 1933, § 50-124 (see O.C.G.A. § 9-14-20) had reference to pleadings and orders in habeas corpus cases and did not require that the trial judge order all habeas hearings to be reported and transcribed. Hilliard v. Hilliard, 243 Ga. 424, 254 S.E.2d 372 (1979). Failure to order transcription of habeas proceeding to regain child custody. — When, in habeas corpus proceeding, divorced father sought to regain custody of son, the trial court did not err in failing to order hearing transcribed. Hilliard v. Hilliard, 243 Ga. 424, 254 S.E.2d 372 (1979). Defense counsel may refuse court’s offer to have evidence and proceedings transcribed. — Defense counsel does not jeopardize the defendant’s right to appeal and thereby ineffectively assist the client when, in misdemeanor trial, counsel refuses the court’s offer to have evidence and proceedings transcribed. Hunt v. State, 133 Ga. App. 548, 211 S.E.2d 601 (1974). Presumption that trial court acted correctly when no transcript prepared. — Defendant’s assertion that the trial court erred in denying the defendant’s motion for a mistrial made following the prosecutor’s closing argument failed, when the defendant contended that the prosecutor improperly commented on the defendant’s failure to testify, yet the prosecutor’s closing argument was not transcribed nor was a substitute included in the record. With neither an original transcript of the offending portions of the prosecutor’s argument nor a transcript prepared from recollection, the court must presume that the trial court acted correctly. Peterson v. State, 204 Ga. App. 532, 419 S.E.2d 757 (1992). When the defendants argued that the trial court erred in denying the defendants’ motions for retrial, and the defendants failed to provide a complete appellate record containing the defendants’ motions for retrial or the trial court’s rulings, the defendants did not satisfy the 690 Page: 691 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-41 Date: 06/14/13 Time: 12:53:27 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS defendants’ burden under O.C.G.A. § 5-6-41, and the appellate court could not review the issue. Bollinger v. State, 259 Ga. App. 102, 576 S.E.2d 80 (2003). Sheriff ’s claim that a corporation failed to prove that a defendant in fieri facias transferred its rights to the excess funds generated in a tax sale was rejected as the sheriff failed to file a transcript or a stipulation of evidence in lieu of a transcript pursuant to O.C.G.A. § 5-6-41(i); the trial court proceedings were entitled to a presumption of regularity and the appellate court had to assume that the trial court’s findings were supported by sufficient competent evidence. Barrett v. Marathon Inv. Corp., 268 Ga. App. 196, 601 S.E.2d 516 (2004). Bank’s writ of possession for a foreclosed property was affirmed as a tenant in sufferance failed to file a transcript or a statutorily-authorized substitute; the evidence was assumed to support the grant of the writ of possession. Wimbley v. Washington Mut. Bank, 271 Ga. App. 477, 610 S.E.2d 124 (2005). Trial court’s grant of a writ of possession to a lessor was presumed to be correct as the lessee’s claims that the lessor waived the parking provision and that the default notice was improperly sent, required a review of the evidence submitted at trial; the lessee failed to file a transcript and did not attempt to reconstruct the transcript as allowed by O.C.G.A. § 5-6-41(g) and (i). Great Lake Enters. v. AJK Group, Inc., 272 Ga. App. 439, 612 S.E.2d 606 (2005). Trial court’s finding that an injured party did not dismiss a suit before the party was found in contempt of the trial court’s order awarding a company an attorney fee for the injured party’s discovery violations was presumed to be supported by the evidence as the injured party failed to include a transcript or a legally acceptable substitute in the record on appeal. Collier v. D & N Trucking Co., 273 Ga. App. 271, 614 S.E.2d 801 (2005). As a condominium unit owner’s appeal from a contempt order of the trial court did not include a transcript of the trial court proceedings or a recreation of the record as provided for in O.C.G.A. § 5-6-41(g) and (i), the owner failed in the burden of proof and the appellate court 5-6-41 presumed that the evidence supported the trial court’s judgment. Schroder v. Murphy, 282 Ga. App. 701, 639 S.E.2d 485 (2006), cert. denied, 2007 Ga. LEXIS 220 (Ga. 2007). On appeal from a stalking conviction, because the record failed to show that the oath was not administered to the jury, no reversible error existed, and the appeals court had to presume that the jury was sworn. Benton v. State, 286 Ga. App. 736, 649 S.E.2d 793 (2007), cert. denied, 2007 Ga. LEXIS 753 (Ga. 2007). Because a commercial tenant, appealing pro se, had not requested a transcript or submitted authorized substitute under O.C.G.A. § 5-6-41, and had expressly noted in notice of appeal that none would be submitted, the court had to presume that the judgment granting a writ of possession to the landlord was correct. Keita v. K & S Trading, 292 Ga. App. 116, 663 S.E.2d 362 (2008). Although a tenant appealing a writ of possession in favor of a landlord made various arguments based on factual issues that required consideration of the evidence presented to the trial court, the tenant failed to file a transcript of the proceedings and failed to reconstruct the proceedings in accordance with O.C.G.A. § 5-6-41(g) and (i); the tenant had the burden to show error by the record, but failed to provide any evidence to support the allegations. It was thus presumed that the trial court’s order was correct. Siratu v. Diane Inv. Group, 298 Ga. App. 127, 679 S.E.2d 359 (2009). Although a hearing was held at which the defendant’s counsel attempted to perfect the record pursuant to O.C.G.A. § 5-6-41(g), no evidence of what was presented at trial was put on, and the parties did not reach an agreement as to what had transpired at the trial. There being no transcript of the trial, the court was bound to assume that the defendant’s convictions were supported by sufficient evidence. Ford v. State, 306 Ga. App. 606, 703 S.E.2d 71 (2010). When a wife appealed a trial court’s decision to enforce the parties’ postnuptial agreement but she failed to provide a transcript under O.C.G.A. § 5-6-41, it was assumed that findings that there was full 691 Page: 692 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Application (Cont’d) and fair disclosure of the husband’s financial condition prior to execution of the agreement were supported by sufficient competent evidence. Spurlin v. Spurlin, 289 Ga. 818, 716 S.E.2d 209 (2011). Imposition of a penalty for a frivolous appeal was warranted when the appellant failed to include the hearing transcript or an authorized substitute in the record and could have no reasonable belief that the court would reverse the judgment of the trial court. Trevino v. Flanders, 231 Ga. App. 782, 501 S.E.2d 13 (1998). When the closing arguments of the parties were not recorded but, in an attempt to supplement the record, the defendant’s attorney filed an affidavit stating that during the state’s closing argument, the assistant district attorney and court reporter were permitted, over the defendant’s objection, to reenact the shooting of the victim, the issues raised were ‘‘deemed abandoned’’ by the defendant’s failure to supplement the record by any of the methods approved under subsection (f ) of O.C.G.A. § 5-6-41. Patterson v. State, 256 Ga. 740, 353 S.E.2d 338 (1987). Court correctly provided transcript not including complete voir dire and argument of counsel; provision of those portions of the voir dire in which objections were made or rulings were made by the trial court was a sufficient compliance with the requirements of O.C.G.A. § 17-8-5, as was limiting transcription of counsel’s argument to those matters to which objection was made. Gardner v. State, 172 Ga. App. 677, 324 S.E.2d 535 (1984). Depositions sent by supplemental record. — There was no reversible error and the depositions were considered part of the record when the court relinquished the depositions to defendants’ attorney with the understanding that the depositions were to be filed in the clerk’s office and transmitted to the appellate court, when counsel failed to do that, the court ordered that the depositions be sent by supplemental record. Custom Lighting & Decorating, Ltd. v. Hampshire Co., 204 Date: 06/14/13 Time: 12:53:27 5-6-41 Ga. App. 293, 418 S.E.2d 811 (1992). Certification of reconstructed transcript. — When the defendant challenged the sufficiency of the evidence at the defendant’s trial, defendant’s simply pointing out the absence of a ruling in the record on the defendant’s motion to certify a reconstructed transcript did not carry the burden of showing that the trial court refused to rule on a reconstructed transcript, and since there was no transcript of the trial, the appellate court was bound to assume that the defendant’s conviction was supported by evidence. Goodwin v. State, 251 Ga. App. 549, 554 S.E.2d 317 (2001). Failure to timely file transcript. — Trial court properly dismissed the debtors’ appeal as a transcript was not filed until over two months after the statutory due date, and the debtors did not request an extension of time to file the transcript; any delay in completing the record past the 30 days granted by statute was presumptively unreasonable and inexcusable. Dye v. U.S. Bank Nat’l Ass’n, 273 Ga. App. 652, 616 S.E.2d 476 (2005). Trial court did not abuse the court’s discretion in ruling that an appellant had not satisfied O.C.G.A. §§ 5-6-42 and 5-6-48, that the appellant’s delay in filing a transcript was unreasonable and inexcusable, and that the delay in the appeal process was the appellant’s fault because the case was remanded to the trial court for the purpose of supplementing or reconstructing the transcript, and at the hearing more than a year later, the appellant offered no evidence as to efforts taken by the appellant to obtain the transcript or, if necessary, to file the appropriate motions to extend the time to file the transcript or to have the transcript reconstructed; at no time did the appellant file a motion to reconstruct the record, pursuant to O.C.G.A. § 5-6-41(g), or to extend the time to file the transcript, pursuant to O.C.G.A. § 5-6-39, after the case was remanded to the trial court. Lavalle v. Jarrett, 306 Ga. App. 260, 701 S.E.2d 886 (2010). Trial court did not abuse the court’s discretion in dismissing the parents’ appeal under O.C.G.A. § 5-6-48(c) on the ground that the parent’s delay in the filing 692 Page: 693 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-41 Date: 06/14/13 Time: 12:53:27 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS of the transcript was unreasonable, inexcusable, and caused by the parents because the parents took no steps whatsoever to have the transcript prepared until almost ten months after the parents filed their notice of appeal, over seven months after the court reporter informed the parents of the necessary deposit, and almost five months after the trial court informed the parents that the parents would be responsible for bearing the full costs of having the transcript prepared; by waiting to pay the deposit and order the transcript, the parents prevented the case from being docketed and heard in the earliest possible appellate term of court. Bush v. Reed, 311 Ga. App. 328, 715 S.E.2d 747 (2011). Trial court did not abuse the court’s discretion, pursuant to O.C.G.A. § 5-6-48(c), in granting the appellee’s motion to dismiss with regard to the transcript on appeal because the appellants’ delay in filing the transcript, pursuant to O.C.G.A. §§ 5-6-41(c) and 5-6-42, was unreasonable, inexcusable, and caused by the appellants. Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012). Restatement of judge’s comments into record. — When, after a lunch break during the guilt phase of the trial, the trial court made a few remarks to the jury while awaiting the return of the defendant, and the trial judge later restated the judge’s comments, as well as the judge could remember the comments, into the record, relating that the judge had told the jury that the trial would be slightly delayed because the defendant had eaten late, and had congratulated one of the jurors for having been elected to the board of education, there was no violation of O.C.G.A. § 5-6-41 or O.C.G.A. § 17-8-5, and any possible constitutional error relating to a defendant’s right to be present during all stages of a defendant’s trial was clearly harmless beyond a reasonable doubt. Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987). Recollected testimony of witnesses. — When during a defendant’s bench trial, the evidence was not recorded, the defendant did not request or otherwise arrange for recording and, afterwards, the state and the defendant were unable to agree on 5-6-41 what transpired during trial, the defendant was afforded the next best thing to a transcript, i.e., the recollected testimony of all witnesses in the criminal trial plus the testimony of persons who observed it. What was recalled was sufficient to conclude that the denial of the defendant’s motion for a new trial was proper. King v. State, 195 Ga. App. 353, 393 S.E.2d 709 (1990). Police officer’s testimony. — In the absence of a transcript for review, the appellate court could assume as a matter of law that a police officer’s testimony was sufficient to support a conviction. Jones v. State, 226 Ga. App. 608, 487 S.E.2d 89 (1997). Burden of proving bias in jury selection. — Defendant did not meet the burden to complete the record to establish a prima facie case that the state improperly used its peremptory strikes to exclude blacks from the jury when the defendant did not amend or supplement the record to reflect the necessary facts pursuant to subsection (f ) of O.C.G.A. § 5-6-41, nor was there any stipulation in the record as to the facts pursuant to subsection (i) of § 5-6-41. Coker v.