Fruit v. Lockhart, 90-297

• Decision Date: 04 February 1991
• Docket Number: No. 90-297,90-297
• Citation: 304 Ark. 457,802 S.W.2d 930
• Parties: Bobby Joe FRUIT, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: Arkansas Supreme Court

Page 930

802 S.W.2d 930

304 Ark. 457

Bobby Joe FRUIT, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 90-297.

Supreme Court of Arkansas.

Feb. 4, 1991.

Bobby Joe Fruit, Tucker, pro se.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Bobby Joe Fruit, was convicted on December 11, 1981, in Crittenden County Circuit Court of aggravated robbery and second degree assault. He is presently serving a sentence of twenty-five years in the Arkansas Department of Correction. On August 22, 1989, appellant filed a petition for writ of mandamus and declaratory judgment in Jefferson County Circuit Court. In this petition he attacked his classification as a fourth offender for purposes of parole eligibility. He alleged appropriate officials at the Arkansas Department of Correction, when classifying him under Ark.Code Ann. § 16-93-603 (1987), improperly considered two prior Oklahoma incarcerations. Following an evidentiary hearing on the matter, the court denied appellant's requested relief. Appellant brings this pro se appeal from that ruling.

Appellant's abstract consists only of a "Statement" he submitted as an exhibit at the evidentiary hearing; it is flagrantly deficient. Pro se litigants are held to the abstracting requirement of Rule 9(e) of the Rules of the Supreme Court. Pennington v. Lockhart, 297 Ark. 475, 763 S.W.2d 78 (1989). When an abstract is flagrantly deficient the judgment must be affirmed for failure to comply with Rule 9(e). Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989); Grisso v. State, 297 Ark. 546, 763 S.W.2d 661 (1989).

Affirmed.

BROWN, J., dissents.

BROWN, Justice, dissenting.

Appellant is an inmate in the Arkansas Department of Correction. He originally filed a declaratory judgment action in circuit court to invalidate two prior Oklahoma convictions which are detrimentally affecting his parole eligibility status in Arkansas. Currently, appellant is deemed to be a fourth offender under Arkansas law which requires him to serve his entire sentence. See Ark.Code Ann. §§ 16-93-603(4) and 16-93-604(b)(5). The two Oklahoma convictions resulted from prosecuting appellant as an adult at age 16 (burglary in the second degree, 1966) and age 17 (firearm possession, 1967) under a certification statute that has since been ruled unconstitutional in that state. See Lamb v. Brown, 456 F.2d 18 (10th Cir.1972). The Tenth Circuit then applied the invalidity of the statute retroactively, which, arguably, would have the effect of voiding the two prior convictions. See Radcliff v. Anderson, 509 F.2d 1093 (10th Cir.1974), cert. denied Anderson v. Radcliff, 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975).

Appellant now appeals the dismissal, but in doing so he has failed to abstract the record or file an appendix with his brief. The majority opinion treats this as an automatic ground for affirming the trial court's decision. That is not my reading of our rules. Rather, the apposite rule states in part:

If the Court finds the abstract to be flagrantly deficient, or to involve an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant's attorney may be allowed time to reprint his brief, at his own expense, to conform to Rule 9(d).

Ark.Sup.Ct.R. 9(e)(2). (Emphasis ours.)

Rule 9(e)(2) is discretionary with this court. Moreover, it contemplates by its terms that if affirmance due to flagrant deficiency is "unduly harsh," the appellant's attorney may be allowed time to correct that deficiency.

The majority's decision is unduly harsh. Additional time to prepare an abstract or file an appendix should be afforded the appellant, especially when he is appearing without the benefit of an attorney.

It appears from reading the record that a federal district court in Oklahoma denied appellant relief in 1988 on the basis that the court lacked jurisdiction over appellant because he was an inmate in the Arkansas Department of Correction. Now an Arkansas trial court has denied appellant relief on the theory that an Arkansas court has no authority to...