Howard v. State , 44 Ala. App. 519 ( 1968 )

PRICE, Presiding Judge.

Appellant was convicted of murder in the second degree and was sentenced to fifteen years’ imprisonment in the penitentiary.

The record shows appellant was adjudged guilty on October 18, 1967, and on that day gave notice of appeal.

The transcript of the evidence was not filed with the circuit clerk until April 23, 1968.

The entire record was filed in this court on May 21, 1968.

There was no motion for a new trial and no request for extension of time for filing the transcript of the evidence, nor was there a request in the court below or in this court for extension of time for filing the transcript of the record here.

The transcript of the testimony was due to be filed in the court below within sixty days from October 18, 1967, the date ■on which the appeal was taken. The entire record was due to be filed here within sixty days from the last day upon which the transcript of the evidence could or should have been filed by the court reporter with the circuit clerk. Relf v. State, 267 Ala. 3, 99 So.2d 216; Morris v. State, 268 Ala. 60, 104 So.2d 810.

The State has filed a motion to strike the transcript of the evidence and dismiss the appeal because of the lateness of the filing of the transcript of the evidence.

The motion to strike the transcript of the evidence is well taken and must be granted. Cases cited hereinabove.

The motion to dismiss the appeal must be denied because there was no motion to strike the entire record. With the transcript of the evidence stricken our review is limited to the record proper. No error appearing therein, the judgment is due to be affirmed.

Motion to strike granted.

Judgment affirmed.