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STATE OF LOUISIANA                                                         *   NO. 2009-KA-1396
VERSUS                                                                     *
                                                                               COURT OF APPEAL
GEORGE K. MILANEZ                                                          *
                                                                               FOURTH CIRCUIT
                                                                           *
                                                                               STATE OF LOUISIANA
                                                                           *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 454-917, SECTION “G”
Honorable Julian A. Parker, Judge
Judge Terri F. Love
(Court composed of Judge James F. McKay, III, Judge Terri F. Love, Judge
Roland L. Belsome)
Leon A. Cannizzaro, Jr.
District Attorney
Brad M. Scott
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA
Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P. O. Box 4015
New Orleans, LA 70178-4015
COUNSEL FOR GEORGE K. MILANEZ
VACATED AND REMANDED
December 16, 2009




The defendant, George Milanez, was granted an out of time appeal from two
convictions which occurred six weeks before Hurricane Katrina struck the Gulf
Coast.   He now seeks a new trial on the grounds that he has been deprived of his
right to a meaningful appeal of his convictions due to the unavailability of his trial
transcript in this case.   We vacate Mr. Milanez’s convictions and sentences and
remand the case for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mr. Milanez was charged with one count of being a convicted felon in
possession of a firearm and with one count of possession of marijuana with the
intent to distribute.   At his arraignment, he pled not guilty to both charges.   The
court denied a motion to suppress evidence.   The State then amended the second
count  of  the  bill  of  information  to  charge  Mr.  Milanez  with  distribution  of
marijuana.    A twelve-person jury found him guilty as charged on both counts.
Sentencing was delayed due to other matters before the court and then further
delayed by the intervention of Hurricane Katrina.   The court denied Mr. Milanez’s
motion for new trial and sentenced him to fifteen years on count one and thirty
years on count two, to be served concurrently.
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TRIAL TRANSCRIPT AVAILABILITY
Mr. Milanez subsequently filed a pro se writ application with this Court
seeking to have his convictions reversed because the record and transcripts had not
been lodged on appeal.   This Court transferred the pleading to the trial court and
the court granted Milanez an out of time appeal.   The court reporter who sat for the
trial later certified that she could not prepare the transcript of the trial because all
of  the  tapes  and/or  stenographer  notes  were  lost  during  the  flooding,  which
inundated the city, and her home, following Hurricane Katrina.
In his sole assignment of error, Mr. Milanez contends that his convictions
and sentences must be vacated because the trial transcript is unavailable.   The State
concedes this argument, and we agree.
This Court has repeatedly held that a defendant has both a constitutional and
statutory right to a review of a complete record of all the evidence upon which a
judgment of conviction and imprisonment is based.  State v. Johnson, 07-0851, p. 2
(La. App. 4 Cir. 9/12/07), 967 So. 2d 538, 539, citing State v. Sublet, 05-0123, p. 3
(La. App. 4 Cir. 5/18/05), 904 So. 2d 778, 780:
La. Const. art. I,  §19 provides in pertinent part:                                        “No
person shall be subjected to imprisonment . . . without the
right  of  review  based  upon  a  complete  record  of  all
evidence upon which the judgment is based.”   See also,
La.  C.Cr.P.  art.                                                                         843,  which  requires  that  all  trial
proceedings be recorded.    Louisiana jurisprudence has
consistently held that where appellate counsel was not
trial counsel and no transcript of the testimony of trial is
available,  a  defendant’s  right  to                                                      “appellate  review  is
rendered  meaningless  .  .  .  and  the  interests  of  justice
require that a defendant be afforded a new, fully-recorded
trial.”   State v. Ford,  338 So.  2d  107,  110  (La.  1976).
See  also,  State  v.  Harris,                                                             01-1910  (La.  App.                       4  Cir.
4/24/02),  817 So.  2d  1164; State v. Johnson,  01-1909
(La. App. 4 Cir. 1/23/02), 807 So. 2d 1071.
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The remedy for a defendant whose trial transcript is unavailable through no fault of
his own is a new trial.   See Johnson; Sublet; Harris; Johnson; State v. Clark, 00-
0348 (La. App. 4 Cir. 12/13/00), 776 So. 2d 1249.
Mr. Milanez has been deprived of his right to a meaningful appeal of his
convictions due to the unavailability of the transcript in this case.   Because the
unavailability of the transcript cannot be attributed to Mr. Milanez, we vacate his
convictions and sentences and remand the case for further proceedings.
DECREE
For the above mentioned reasons, we vacate Mr. Milanez’s convictions and
remand the case for further proceedings.
VACATED AND REMANDED
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