Allen v. Routon, CA

• Decision Date: 23 April 1997
• Docket Number: No. CA,CA
• Citation: 943 S.W.2d 605,57 Ark.App. 137
• Parties: Billy ALLEN, Appellant, v. Steve ROUTON, Municipal Court Judge; The State of Arkansas; and Gary Mitchusson, Deputy Prosecuting Attorney, Appellees. 96-692.
• Court: Arkansas Court of Appeals

Page 605

943 S.W.2d 605

57 Ark.App. 137

Billy ALLEN, Appellant, v. Steve ROUTON, Municipal Court Judge; The State of Arkansas and Gary Mitchusson, Deputy Prosecuting Attorney Appellees.

No. CA 96-692.

Court of Appeals of Arkansas Division IV.

April 23, 1997.

Heather Patrice Hogrobrooks, Forrest City, for Appellant.

GRIFFEN, Judge.

Billy Allen has appealed from the decision of the St. Francis Circuit Court that denied his petition for writ of certiorari based on allegations that his conviction in the Forrest City Municipal Court on the charge of theft was unconstitutional because he was denied counsel before the municipal court. We hold that appellant has failed to comply with Supreme Court Rule 4-2(a)(6) regarding abstracting of the record, and that the abstract submitted by appellant is flagrantly deficient. Accordingly, we affirm the trial court judgment due to noncompliance with the Rule. We are also directing that a copy of our opinion be forwarded to the Supreme Court Committee on Professional Conduct for such action as it may deem warranted due to the persistent failure by, Heather Patrice Hogrobrooks, counsel for appellant, to comply with the abstracting requirement of our rules.

The record shows that appellant was charged with theft of property, a Class A misdemeanor, based on the allegation by Ossie Pitts that appellant stole a 1984 Oldsmobile car from Pitts's front yard and stripped it. He was convicted in the municipal court on the charge, and was sentenced to pay a $500 fine, pay restitution of $2,000 at the rate of $150 per month beginning September 1, 1995, and serve one year in jail. The jail sentence was suspended.

Appellant did not file a direct appeal from the municipal court conviction. Instead, he filed a petition for writ of certiorari and for writ of prohibition in the circuit court after the time for filing an appeal had expired. His circuit court contention was that the municipal court lacked jurisdiction to adjudicate his guilt or innocence because the value of the allegedly stolen vehicle exceeded $500, and that his right to counsel guaranteed by the Sixth Amendment of the U.S. Constitution was denied when he was not told that he could have counsel appointed. The circuit court held that the municipal court had jurisdiction over appellant's misdemeanor charge, and that the $500 fine and requirement that appellant pay restitution of $2,000 was proper. However, it held that the municipal court lacked the power to impose the one-year jail sentence and then suspend its execution. The circuit court specifically declined to address appellant's claim that his right to counsel pursuant to the Sixth Amendment was denied, finding that a deputy prosecuting attorney had no obligation to provide appellant with counsel.

Although appellant urges us to reverse the circuit court decision on the merits, we are unable to do so because of the grossly deficient abstract that appellant has filed. Rule 4-2(a)(6) provides that the appellant's abstract shall consist of an impartial condensation, without comment or emphasis, of such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the appellate court for decision. Rule 4-2(b) states that deficiencies in the appellant's abstract will be handled by either preparation of a supplemental abstract by the appellee, or by the appellate court addressing the deficiency sua sponte when the case is submitted on its merits. If the appellate court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. Where the appellate court considers summary affirmance unduly harsh, it may allow the attorney for appellant time to revise the brief, at his or her cost, to conform with the abstracting rule. Id.

In Davis v. State, 325 Ark. 36, 924 S.W.2d 452 (1996), the supreme court summarily affirmed a conviction and sentence to thirty- three (33) years' imprisonment arising from two counts of possession of a controlled substance with intent to deliver. Although that appeal challenged the conviction for violation of the speedy trial guarantee, the substance of appellant's motion to dismiss for lack of a speedy trial was not abstracted. The trial court's ruling on the motion to dismiss was not abstracted. The appellant in Davis also failed to abstract the grounds that had been asserted in motions for continuances that he made, and failed to abstract the trial court's orders on the continuance motions. He failed to abstract the hearing on the speedy trial motion, the substance of a motion for reconsideration, or the trial court's ruling on the motion for reconsideration. The Davis case also involved failure to abstract the jury verdict, judgment and commitment order, or notice of appeal. The supreme court summarily affirmed the conviction because of the abstracting deficiencies.

In Rosser v. Columbia Mut. Ins. Co., 55 Ark.App. 77, 928 S.W.2d 813 (1996), we affirmed a summary judgment for the appellee on its merits despite the flagrantly deficient abstract filed by the appellant. However, we granted the appellee's motion for costs associated with preparing a supplemental abstract, and we ordered counsel for the appellant to pay an attorney's fee to counsel for the appellee. In Rosser, the appellant failed to abstract the complaint or any other pleading, including the summary judgment pleadings that resulted in the order from which she appealed. She also failed to abstract the trial court order that granted summary judgment. We specifically observed that the abstracting defects were so flagrant that it would have been impossible to render a decision on the merits but for the supplemental abstract in the appellee's brief because it would have been impossible to understand the basis of the appeal or review the order on which it was based. Id.

In C.H. v. State, 51 Ark.App. 153, 912 S.W.2d 942 (1995), our court rendered an en banc decision that affirmed a judgment from the St. Francis County Chancery Court, Juvenile Division, involving the conviction of the appellant for theft of property. The appellant contended that the conviction was not...