Marrio Terrill Simmons v. State

Court of Appeals
of the State of Georgia

                                          ATLANTA,____________________
                                                    December 19, 2014

The Court of Appeals hereby passes the following order:

A14A2041. SIMMONS v. THE STATE.

       Marrio Terrill Simmons appeals pro se from the trial court’s denial of his
“Motion to Vacate/Set Aside an Illegal Sentence.” He asserts on appeal that his 2007
sentence on a guilty plea to various drug charges is illegal because two of the three
prior convictions used to sentence him as a recidivist should have been considered
as only one conviction; his 1998 and 1999 guilty pleas were invalid; and he was
improperly sentenced pursuant to OCGA § 17-10-7 (c). Simmons’ notice of appeal
specifically requested the “transcript of evidence and proceeding[s] from judgment
of trial court entered on February 7th 2007,” and the “transcript and evidence and
proceeding[s] from judgment of trial court entered on January 22nd 1999,” neither
of which were included in the record here on appeal. The Clerk of the Superior Court
of Muscogee County has informed this court that these two transcripts were filed but
cannot be located in the clerk’s storage space.
       Because the omitted transcripts are necessary for this court to conduct a proper
appellate review, this case is remanded back to the trial court until such time as they
are located or replaced. See OCGA § 5-6-41 (e) (“Where a civil or criminal trial is
reported by a court reporter and the evidence and proceedings are transcribed, the
reporter shall complete the transcript and file the original and one copy thereof with
the clerk of the trial court, together with the court reporter’s certificate attesting to the
correctness thereof.”); OCGA § 5-6-42 (“Where there is a transcript of evidence and
proceedings to be included in the record on appeal, the appellant shall cause the
transcript to be prepared and filed as provided by Code Section 5-6-41.”) The Clerk
of the Superior Court of Muscogee County shall then transmit the entire record to this
Court for re-docketing.

                          Court of Appeals of the State of Georgia
                                                               12/19/2014
                                 Clerk’s Office, Atlanta,____________________
                                 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.