Request By:
Ms. Marilyn M. Roberts
Official Court Reporter
244 Wayne Street
Manchester, Kentucky 40962
Opinion
Opinion By: Steven L. Beshear, Attorney General; William L. Davis, Assistant Attorney General
This is in response to your letter of January 11, in which you stated the following:
My name is Marilyn M. Roberts, and I am the Official Court Reporter for the 41st Judicial District of Kentucky, composed of Clay, Jackson and Leslie counties. I have been having some problems with a statement for a transcript in a pauper case in Jackson County. The State Local Finance office evidently says that the County does not have to pay for this although KRS 31.200 says exactly the opposite. I have been advised to write your office for an opinion on this matter.
The Administrative Office of the Courts pays for all appeals on pauper cases, but it has always been the rule in the fifteen years that I have been the Court Reporter that the county in which the pauper's case is tried and in which he resides is liable for a transcript of a mis-trial or something of that nature in pauper cases.
Your response to this matter will be greatly appreciated. The case in question in Jackson County was a murder case, and the transcript was of a mis-trial. The style was Commonwealth of Kentucky versus Fred and Carolyn Himes.
Several years ago in Clay County there was a similar problem with only one case, Commonwealth of Kentucky versus Calvin Ray Smith, which resulted in a mis-trial, and the attorney for the Office of Public Advocacy took this matter to the Supreme Court insisting that he was entitled to the transcript and they said that the county was responsible, and that bill was paid. This is the only other problem of this nature I have had on pauper transcripts.
As you know, an indigent defendant is entitled to a transcript of a mistrial to prepare for a new trial unless there is some equivalent alternative available.
Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971);
Simmons v. Commonwealth, Ky.App., 576 S.W.2d 253 (1978). Thus, we must assume that there is no other equivalent alternative available in the instant case.
Further, it must be noted that KRS 31.200 states the following:
31.200. Expenses chargeable to county and to public advocate. -- (1) Subject to KRS 31.190, any direct expense, including the cost of a transcript or bystander's bill or exceptions or other substitute for a transcript that is necessarily incurred in representing a needy person under this chapter, is a charge against the county on behalf of which the service is performed.
(2) If two (2) or more counties jointly establish an office for public advocacy, the expenses not otherwise allocable among the participating counties under subsection (1) shall be allocated, unless the counties otherwise agree, on the basis of population according to the most recent decennial census.
(3) Expenses incurred in the representation of needy persons confined in a state correctional institution shall be borne by the state office for public advocacy. [Emphasis added].
And, the Court in Calvin Ray Smith v. Clay M. Bishop, Judge Clay Circuit Court, Ky.App., File No. 79-CA-1640-MR on November 12, 1979, issued an order granting mandamus. In its order, the Court stated the following:
It is further ORDERED that the Clay Circuit Court order the official court reporter to prepare the transcript of the petitioner's prior mistrial, to be prepared at the expense of the Clay County Fiscal Court.
It is further ORDERED that the stay previously entered by this Court shall remain in effect until such time as the said transcript has been prepared.
Based upon the foregoing authorities, it is our opinion that the Jackson County Fiscal Court is responsible for paying the official court reporter for preparing the transcript of the mistrial and not the Administrative Office of the Courts.
Please feel free to contact this office if we may be of further assistance.