Floyd v. State

2016 Ark. 86

• Court: Supreme Court of Arkansas
• Decided: March 3, 2016
• Docket: CR-15-813
• Status: Published

Opinion

Cite as 2016 Ark. 86

SUPREME COURT OF ARKANSAS No. CR-15-813 PHILLIP FLOYD Opinion Delivered: March 3, 2016 APPELLANT

V. APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT STATE OF ARKANSAS [CR2014-136(ED)] APPELLEE HONORABLE SCOTT JACKSON, JUDGE

SUPPLEMENTAL RECORD ORDERED.

PER CURIAM

Appellant Phillip Floyd appeals the order of the Carroll County Circuit Court

disqualifying his lawyer, Gerald Kent Crow. The only issue on appeal is whether Crow

was disqualified from representation under Rule 1.12 of the Arkansas Rules of Professional

Conduct by his previous participation in the case as the judge who signed the affidavit of

probable cause for Floyd’s arrest warrant and presided over Floyd’s plea and arraignment

hearing. We are unable to reach the merits of Floyd’s issue on appeal because he failed to

file a sufficient record for our review.

Rule 1.12 provides that “a lawyer shall not represent anyone in connection with a

matter in which the lawyer participated personally and substantially as a judge . . . unless all

parties to the proceeding give informed consent, confirmed in writing.” Ark. R. Prof.’l

Conduct R. 1.12. In this case, the circuit court found that Crow’s participation in the case

violated Rule 1.12 and disqualified him from representing Floyd. On appeal, Floyd argues Cite as 2016 Ark. 86

that the circuit court erred in disqualifying Crow because his signing the affidavit of probable

cause for the arrest warrant and presiding over the plea and arraignment hearing did not

constitute “personally and substantially” participating in the case as a judge. However,

neither the affidavit of probable cause for the arrest warrant nor a transcript of the plea and

arraignment hearing is included in the record.

In order for this court to adequately review Crow’s participation in the case as a

judge, we must have before us the affidavit of probable cause and a transcript of the plea and

arraignment hearing over which he presided. We recognize that the record presently before

us is abbreviated due to the materials requested by Floyd in his notice of appeal and

designation of the record. However, the State failed to object to the limitation, nor did it

file a designation of any additional materials it believed should have been included in the

record. We have held that where an appellee fails to object to the designation of the record

or designate any additional materials, the appellee has tacitly consented to the abbreviated

record. E.g., Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005).

Rule 6 of the Arkansas Rules of Appellate Procedure–Civil, as applied through Rule

4(a) of the Arkansas Rules of Appellate Procedure–Criminal provides, “Where parties in

good faith abbreviate the record by agreement or without objection from opposing parties,

the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the

record without notice to the appellant and reasonable opportunity to supply the deficiency.”

Ark. R. App. P.–Civ. 6(c). Further, pursuant to Rule 6(e), this court may, on its own

initiative, direct a party to file a supplemental record to correct an omission. Ark. R. App.

P.–Civ. 6(e).

2 Cite as 2016 Ark. 86

Pursuant to Rule 6(c) and (e), we order Floyd to supply this court with a certified,

supplemental record that includes a copy of the affidavit of probable cause for the arrest

warrant, if available, and a transcript of the plea and arraignment hearing over which Crow

presided, if available, within sixty days of the issuance of this opinion. Floyd is further

ordered to file a substituted abstract and addendum in compliance with Arkansas Supreme

Court Rule 4-2(a)(5) and (a)(8).

Gerald K. Crow, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.