Robinson v. State 444 So. 2d 882

TYSON, Judge.

John Marion Robinson appeals to this court following his indictment for felony possession of a pistol, and two-year sentence by the circuit court after a plea of guilty entered therein by the appellant.

I

This record, however, does not contain the transcript of the guilty plea proceedings before the circuit court so that this court is unable to determine whether or not there was proper compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is no showing of indigency in this case. While there is an “Ireland Form” in the record, from our examination of same, there is an insufficient basis for this court to determine whether or not appellant was properly advised of his rights under Boykin v. Alabama, supra. Therefore this record is deficient under the standards laid down by the Supreme Court of Alabama in Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974) and authorities therein cited. See also Alston v. State, 414 So.2d 488 (Ala.Cr.App.1982).

II

Moreover, appellant argues that there was an understanding with the district at*883torney that appellant was to receive probation in exchange for his plea of guilty to the charge of felony possession of a pistol.

On this issue, there is no transcript of the sentencing hearing, either, so that this court is unable to determine whether or not the guilty plea was based upon an understanding with the district attorney’s office that appellant was, in fact, to receive probation. See Arnold v. State, 409 So.2d 947 (Ala.Cr.App.1982) and authorities therein cited.

Inasmuch as there is an insufficient record for this court to properly determine the basis of either of the alleged errors, we have no alternative but to reverse and remand this cause for new trial.

REVERSED AND REMANDED.

All the Judges concur.

On Rehearing

TYSON, Judge.

The State of Alabama has petitioned this court by application for rehearing to extend its opinion of August 24, 1982, and to consider that the record on appeal in the instant cause also includes a conviction for third degree burglary and requests this court to also address this appeal.

Together with the conviction for felony possession of a pistol and two-year sentence therefor, this record does, in fact, also contain a conviction showing an indictment and minute entry establishing the third degree burglary of Southern Sash of Decatur, Inc., for which the appellant was adjudged guilty and sentenced to ten years, following the entering of a plea of guilty..

The trial court allowed the appellant to withdraw his plea of not guilty after conferring with his attorney. The cause was then set on the issue of probation, which was denied, and this appeal followed.

I

This record, like the transcript of the guilty plea proceeding, which involved the conviction of a felony possession of a pistol and two-year sentence, does not contain a colloquy of the guilty plea proceedings, nor does the record in this appeal contain a colloquy of the probation hearing which involved the conviction of third degree burglary and ten-year sentence.

Since there apparently is some dispute over whether or not such guilty plea was based upon an understanding with the district attorney’s office to recommend probation, we must reverse and remand both of these causes for a new trial, since there is an insufficient record for this court to properly determine the basis of either of the alleged errors.

We therefore have no alternative but to reverse and remand both of these causes for a new trial. (Authorities cited on original deliverance).

II

The attorney general in brief requests this court to consider an affidavit attached to the brief from the official court reporter concerning the status of the transcript and colloquy of these guilty plea proceedings.

Such affidavit sets forth matters which the attorney general contends occurred at trial, or at the probation hearing, but which are not shown by a motion for new trial, or by appropriate motion to correct the record as filed in the trial court, thus we cannot consider same on appeal.

We believe the rule controlling such affidavit, and matters asserted in brief on rehearing, to be controlled by Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971) as follows:

“The rule is that argument in brief reciting matters not disclosed by the record cannot be considered on appeal, Christian v. Reed, 265 Ala. 533, 92 So.2d 881; and the record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record. Coleman v. Estes, 281 Ala. 234, 201 So.2d 391; Liberty National Life Ins. Co. v. Patterson, 278 Ala. 43, 175 So.2d 737; Evans v. Avery, 272 Ala. 230, 130 So.2d 373.”

*884See also Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200 (1973).

Both of these cases must therefore be reversed and remanded for a new trial.

OPINION EXTENDED, APPLICATION OVERRULED; CASES REVERSED AND REMANDED.

HARRIS, P.J., and BARRON, J., concur.

BOWEN, J., dissents with opinion. De-CARLO, J., concurs in dissent.

BOWEN, Judge,

dissenting.

The majority reverses and remands for new trial two of the defendant’s convictions based on guilty pleas “since there is an insufficient record for this Court to properly determine the basis of either of the alleged errors.”

On application for rehearing, the Attorney General submitted the affidavit of Darrell Haley, the official court reporter for the 8th Judicial Circuit. Mr. Haley states that the defendant’s retained counsel advised him not to start work on the transcript until advised to proceed. Mr. Haley also states, “No order for the transcript was ever received from the attorney, and I was never requested to furnish the transcript.”

As the majority notes, this affidavit is not properly before this Court. However, I cannot completely ignore it either. I would remand the cause for a hearing to determine why the record is not complete. I would not allow a defendant to profit by invited error if that be the case.

Under the same reasoning as employed by the majority in rejecting the court reporter’s affidavit, the argument of any misunderstanding concerning probation should also be disregarded. That contention is only supported in the record by the un-sworn allegations of a motion to withdraw the two guilty pleas. That motion was submitted on “affidavits and other information ... without a hearing.”

The only affidavit contained in the record is that of Larry Madison, Assistant District Attorney. That affidavit is to the effect that he promised and did not take any position regarding probation. The motion does not dispute this but merely alleges that the defendant and his attorney “believed” that probation would be granted. In reversing the convictions, the majority has applied the wrong standard. “(I)n the absence of the evidence and proceedings on the trial, all presumptions must be indulged in favor of the trial court. Error cannot be presumed.” Thomas v. State, 231 Ala. 606, 607, 165 So. 833 (1936). “Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done.” Watson v. State, 398 So.2d 320 (Ala.Cr.App.), cert. denied, 398 So.2d 332 (Ala.1981). This is not a case where no court reporter was available. See White v. State, 403 So.2d 287 (Ala.Cr.App.1980), cert. denied, 403 So.2d 292 (Ala.1981).

It is a fundamental principle of appellate review that error will not be presumed on appeal. Error cannot be based on matters not shown in the record. Watson, 398 So.2d at 330. A judgment cannot be impeached or contradicted by matters not appearing in the record proper. Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966). The defendant is charged with the duty of presenting a correct record to this Court. Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981).