FLINT v. STATE (2010)

Lorenzo E. Flint, Jr. seeks a certificate of probable cause to appeal from the dismissal of his petition for writ of habeas corpus in which he challenges his 1988 guilty plea to one felony count and one misdemeanor count of Violation of the Georgia Controlled Substances Act. This is the second appearance of this case before the Court. In March 2008, we granted a certificate of probable cause to appeal and by order remanded the case with direction that “the habeas court hold a hearing which, in accordance with OCGA § 9-14-50, shall be transcribed,” and to consider whether the petition is procedurally barred and subject to dismissal under OCGA § 9-14-48(e). Flint v. State, S08H1047 (order entered March 31, 2008).

Following remand, the habeas court held a hearing on June 16, 2009, at which Flint testified telephonically. The court then entered a written order dismissing the petition under OCGA § 9-14-48(e) based on a finding that petitioner delayed 20 years in filing his petition, that respondent was prejudiced in its ability to respond, and that petitioner has not shown by a preponderance of the evidence that he should be excused for his dilatory conduct. Flint timely and properly filed a notice of appeal in the habeas court and an application for certificate of probable cause to appeal in this Court. We again grant the certificate of probable cause, and this time explain the rationale for our ruling in the form of an opinion.

Notwithstanding this Court's admonition on remand, there is no transcript of the June 16, 2009 hearing in the record on appeal.¹ In a habeas corpus proceeding brought by persons “whose liberty is being restrained by virtue of a sentence imposed against them by a state court of record,” OCGA § 9-14-41, it is statutorily mandated that “[a]ll trials ․ shall be transcribed by a court reporter designated by the superior court hearing the case.” OCGA § 9-14-50. This provision is mandatory rather than directory. Without such a transcript, the merits of the habeas court's final order cannot be reached by an appellate court. In accordance with the foregoing legislative mandate, we hold that a habeas corpus petitioner is entitled to have the trial of his case transcribed by a court reporter and that an indigent petitioner is entitled to a transcript at the expense of the State. We, therefore, grant the certificate of probable cause and again remand to the habeas court for a hearing which shall be transcribed by a court reporter in accordance with OCGA § 9-14-50. To the extent that York v. Jarvis, 248 Ga. 774 (286 S.E.2d 296) (1982) and Shaw v. Jones, 226 Ga. 291(1) (174 S.E.2d 444) (1970) suggest otherwise, they are overruled.

Certificate of probable cause granted and case remanded with direction.

FOOTNOTES

1.  Upon inquiry by our Clerk of Court, we have been advised that the habeas hearing had not been taken down, despite a letter in the record from petitioner to the clerk of the habeas court reminding the court of his indigent status and requesting such transcript.

THOMPSON, Justice.

All the Justices concur.