Walter MacKintrush v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 8, 2001

WALTER RAY MACKINTRUSH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-952

PETITION FOR REHEARING (CIRCUIT COURT OF PULASKI COUNTY, NO. CR 94-3632)

PETITION DENIED

We affirmed the circuit court's denial of Mackintrush's Rule 37 petition on October 4, 2001. Mackintrush v. State, CR 99-952 (October 4, 2001). Mackintrush has filed a petition for rehearing in response to our decision. He contends that we arbitrarily applied our abstracting rules thus denying him his constitutional right to due process. According to Mackintrush, he abstracted ninety-five pages of testimony and exhibits and carefully adhered to the court rules to the best of his ability.

Rule 2-3 (g) of the Rules of the Arkansas Supreme Court provides that rehearing lies only for the purpose of calling attention to specific errors of law or fact which the opinion is thought to contain. In our decision denying appellant's Rule 37 petition, we found that appellant had failed to abstract his Rule 37 petition and other evidence and facts referenced to by appellant in his arguments. The abstract in the appeal was clearly insufficient, and a petition for rehearing cannotserved to cure the deficient abstract. Thus, the petition for rehearing is denied.1

We have said repeatedly that the record on appeal is confined to that which is properly abstracted because it is not feasible for the seven justices of this court to each examine the record. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1984); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). When an abstract is deficient, the lower court's judgment or order must be affirmed. See Fruit v. State, 304 Ark. 457, 802 S.W.2d 930 (1991). We will not explore the record for prejudicial error. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387; Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987).

Petition denied.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam).