Gary Dayberry v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 17, 2003

GARY DAYBERRY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-740

APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY, NO. CR 99-55-1 AND CR 2001-7, HONORABLE JOHN DAN KEMP, JR, JUDGE

REBRIEFING ORDERED

Appellant pleaded guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia with intent to use in case number CR 2001-7. He was sentenced to ten years' imprisonment on each count to be served concurrently with each other and consecutively to his sentence of eighteen years in case number CR 99-55-1. Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 styled with case numbers CR 2001-7 and CR 99-55-1. The circuit court denied appellant's petition with respect to CR 99-55-1 because it was untimely and because it was appellant's second petition under Rule 37 in that case. Appellant filed a notice of appeal styled with case numbers CR 2001-7 and CR 99-55-1. The circuit court later denied appellant's Rule 37 petition with respect to CR 2001-7, and appellant filed a notice of appeal in that case.

The judgment in CR 99-55-1 is not part of the record in this appeal.1 Appellant appears to be attempting to appeal the circuit court's denial of postconviction relief in both CR 99-55-1 and CR 2001-7. For his first point, appellant claims that the circuit court erred in revoking his probation in CR 99-55-1 because he was not represented by counsel. However, because we granted appellant's motion for belated appeal in CR 99-55-1, the direct appeal of his probation revocation is still pending. Rule 37 relief is not available while an appeal is pending. Brewer v. State, 274 Ark. 38, 39, 621 S.W.2d 698, 699 (1981); see also Ark. R Crim. P. 37.2 (2002). Therefore, appellant's claims regarding CR 99-55-1 are barred. As for appellant's claims regarding his guilty plea in CR 2001-7, we cannot reach the merits of his claims because he has failed to abstract the material parts of the record as required by Ark. Sup. Ct. R. 4- 2(a)(5) (2002).

In support of his arguments on appeal, appellant makes reference to matters that concern his guilty plea; however, appellant's plea hearing is not part of the record lodged with this court. If appellant desires to make the hearing a part of the record so that he may include it in his abstract, he may file a petition for writ of certiorari and request an extension of time to file a substituted brief.

Therefore, appellant has fifteen days from the date of this opinion to either file a petition for certiorari and motion for extension of time or file a substituted abstract, Addendum, and brief to conform to Rule 4-2(a)(5) and (8). See Ark. Sup. Ct. R. 4-2(b)(3). Mere modifications of theoriginal brief will not be accepted. Id. According to Rule 4-2(b)(3), if appellant fails to file a complying abstract, Addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

··²SearchTerm²····²SearchTerm²·· Rebriefing ordered.

1 Appellant included the judgment in CR 99-55-1 in his addendum; however, it is not part of the record in CR 2001-7. In CR 99-55-1, appellant pleaded guilty to theft of property and was sentenced to five years' probation. His probationary sentence was revoked, and appellant was sentenced to eighteen years' imprisonment. Appellant filed a pro se motion for belated appeal in CR 99-55-1, seeking to appeal the revocation of his probationary sentence. See Dayberry v. State, CR 02-301 (Ark. Sept. 12, 2002) (per curiam) ("Dayberry II"). We issued an opinion remanding CR 99-55-1 to the circuit court for an evidentiary hearing. See Dayberry v. State, CR 02-301 (Ark. May 23, 2002) (per curiam). The circuit court subsequently found that appellant did not make a knowing, voluntary, and intelligent wavier of counsel at his revocation hearing in CR 99-55-1, and we granted appellant's motion for belated appeal. See Dayberry II, supra.