Smith v. State

2014 Ark. 129

• Court: Supreme Court of Arkansas
• Decided: March 20, 2014
• Docket: CR-12-487
• Status: Published

Opinion

Cite as 2014 Ark. 129

SUPREME COURT OF ARKANSAS No. CR-12-487

ROY SMITH Opinion Delivered March 20, 2014 APPELLANT APPEAL FROM THE ARKANSAS V. COUNTY CIRCUIT COURT [NO. CR2007-54]

STATE OF ARKANSAS HONORABLE DAVID G. HENRY, APPELLEE JUDGE

REBRIEFING ORDERED.

PER CURIAM

Appellant, Roy Smith, appeals from the circuit court’s order denying his petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). On

appeal, Smith contends that the circuit court erred in finding that his trial counsel did not

render ineffective assistance of counsel based on trial counsel’s (1) refusal to strike a juror, (2)

failure to properly move for a continuance, and (3) failure to challenge the execution of the

search warrant. However, we are unable to reach the merits of Smith’s appeal because his

brief does not comply with Arkansas Supreme Court Rules 4-2(a)(5) and (8) (2013).

Pursuant to Arkansas Supreme Court Rule 4-2(a)(5), “the appellant shall create an

abstract of the material parts of all the transcripts (stenographically reported material) in the

record. Information in a transcript is material if the information is essential for the appellate

court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.”

In the case at bar, Smith asserts error with regard to his trial counsel’s refusal to strike Cite as 2014 Ark. 129

a juror. However, Smith did not provide any abstract of the relevant voir dire appearing in

the original trial transcript. Likewise, Smith argues that his trial counsel was ineffective for

failing to file a proper motion for continuance. However, Smith does not include any abstract

of the relevant portions of the original trial transcript related to the motion for continuance.

Also, Smith failed to abstract the suppression hearing but argues that his counsel was

ineffective with regard to the search warrant.

Additionally, the addendum in this case is incomplete. Arkansas Supreme Court Rule

4-2(a)(8) provides that the addendum shall contain true and legible copies of the

non-transcript documents in the record on appeal that are essential for this court “to confirm

its jurisdiction, to understand the case, and to decide the issues on appeal.” Among other

specifically described items, the addendum must include “all motions (including posttrial and

postjudgment motions), responses, replies, exhibits, and related briefs, concerning the order,

judgment, or ruling challenged on appeal.” Ark. Sup. Ct. R. 4-2(a)(8)(A). Here, Smith

failed to include a copy of the warrant or the motion to suppress in the addendum.

Accordingly, pursuant to Ark. Sup. Ct. R. 4-2(b)(3), Smith is directed to file a

substituted abstract, addendum and brief with our clerk within fifteen days from the date of

this per curiam. After service of the substituted brief, the State shall have an opportunity to

file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely upon

the brief that was previously filed in this appeal.

While we have noted the above-mentioned deficiencies, we encourage Smith’s

counsel to review our rules and the entire record to ensure that no additional deficiencies are

2 CR-12-487 Cite as 2014 Ark. 129

present.

Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.

Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.

3 CR-12-487