Submitting Copy of the Evidence to the Appellate Court
The State appealed the 48(b) dismissal pursuant to 10 Del. C., 9902. As this is an appeal on the record, (CCP Cr. R. 39(f)), Court of Common Pleas Civil Rule 72.1 is applicable.
According to this rule, a typewritten copy of the evidence is to be provided to the Appellate Court unless there is a written stipulation that the evidence may be omitted.
No typewritten copy of the evidence; i.e., a transcript of the evidence and arguments heard by the Magistrate, were filed as required by the rule. No stipulation of facts was submitted in lieu thereof.
This Court can glean no stipulation of the facts presented to the Magistrate from the record provided or the factual assertions contained in the briefs.
There are different factual allegations asserted by the briefs as to what facts were presented to the Magistrate and which formed a basis of his exercise of discretion to dismiss for lack of prosecution.
The State claims in its brief that the officer was aware of the trial but believed that the trial was continued. the Defense alleges that the officer was aware of the trial but "chose" not to appear.
Without a stipulation, or a transcript of the facts and arguments below, this Court is unable to ascertain whether the Magistrate abused his discretion in dismissing the case under Rule 48(b). the record is not sufficient.
The State as the appealing party has the burden of producing the portions of the transcript necessary to give the Appellate Court a "fair and accurate account of the context" in which the claim of error occurred. Slater v. State, Del. Supr., 606 A.2d 1334, 1336 (1992).
The record provided in this appeal is deficient and this Court is unable to determine what facts were considered by the Magistrate and formed the basis of his decision.
The record as presented does not reveal anything upon which an abuse of discretion can be found.
For these reason, the decision of the Justice of the Peace Court is Affirmed.