UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JEROME ATILUS, DEFENDANT-APPELLANT
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The court held that a conviction must be reversed when a trial transcript is unavailable, especially when appellate counsel differs from trial counsel.
Jerome Atilus was convicted in 1964 for drug offenses, but a transcript of the trial proceedings is no longer available through no fault of his own. H…
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PER CURIAM:
Jerome Atilus was convicted in 1964 for illegally possessing and transporting marihuana in violation of 26 U.S. C.A. §§ 4744(a) and 4742(a). His appeal from that conviction was delayed, and as a result the propriety of this 1964 conviction is now before us for the first time on direct appeal.1
It appears that through no fault of the defendant a transcript of the trial proceedings is no longer available. Under these circumstances this court has no choice but to reverse the conviction. The Supreme Court has made it clear beyond question that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where, as here, counsel on appeal was not counsel at the trial. Hardy v. United States, 1963, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331. Since no transcript is here available, the conviction must be reversed. Further, since Atilus has already completely served the sentence imposed as a result of the conviction, a retrial would be pointless.
The judgment of the court below is reversed and the cause is remanded for the entry of appropriate orders to expunge the records of this conviction.
Reversed and remanded.
. Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F. 2d 804, Part I; Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F. 2d 526, Part. I.
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Elbert Quinton Yancey v. State, 267 So. 2d 836 (Fla. 4th DCA 1972)
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United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971)
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United States v. Selva, 559 F.2d 1303 (5th Cir. 1977)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murphy v. Houma Well Serv., 409 F.2d 804 (5th Cir. 1969)
- Huth v. S. Pac. Co., 417 F.2d 526 (5th Cir. 1969)
- Hardy v. United States, 375 U.S. 277 (U.S. 1964)