Bobby Savage a/k/a Bobby Wayne Savage v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 06-526
Opinion Delivered
BOBBY SAVAGE
A/K/A BOBBY WAYNE SAVAGE
Appellant
April 26, 2007
PETITION FOR REHEARING AND
MOTION FOR APPOINTMENT OF
COUNSEL [CIRCUIT COURT OF
BENTON COUNTY, CR 2003-1168,
HON. DAVID S. CLINGER, JUDGE]
v.
STATE OF ARKANSAS
Appellee
PETITION FOR REHEARING DENIED
AND MOTION FOR APPOINTMENT
OF COUNSEL DENIED.
PER CURIAM
In 2005, Bobby Savage, also known as Bobby Wayne Savage, entered a plea of guilty to firstdegree sexual assault and aggravated assault on an employee of a correctional facility, and was
sentenced to an aggregate term of 312 months’ imprisonment. Subsequently, appellant timely filed
in the trial court a petition for postconviction relief pursuant to Ark. R. Civ. P. 37.1, arguing that his
guilty plea was entered as the result of ineffective assistance of counsel. The trial court denied the
petition without a hearing, and appellant lodged an appeal here from the order.
We reversed and remanded the case to the trial court to vacate the judgment as to the firstdegree sexual assault charge for retrial, finding merit to appellant’s claim of ineffective assistance
of counsel. Now before us is the State’s petition for rehearing of our decision. Appellant has not
filed a response to this petition.
The gravamen of the State’s complaint is that this court committed “an error of law when it
went into the record to reverse the trial court’s ruling, as review on appeal is limited to the record
as abstracted.” It deemed the abstract of the court testimony to be deficient, and also argued that the
addendum did not contain the judgment and commitment order. Alternatively, the State contends
that the matter should be remanded to the trial court for a hearing on the Rule 37.1 petition so that
the trial court would have the opportunity to reach a “proper decision[.]”
Contrary to the State’s argument, the court did not rely on the unabstracted record in making
its ruling.
Instead, appellant’s abstract showed prejudicial error and included the specific
conversations necessary for consideration of the issue raised by appellant. Although the testimony
cited by the court in its opinion encompassed more than the plea hearing testimony abstracted by
appellant, the additional language utilized by this court merely placed the abstracted portions of the
hearing testimony in its proper context for the readers of the opinion. Moreover, this court is not
prohibited from considering the record in a postconviction matter if prejudicial error was properly
shown by the abstract. Bowers. v. State, 292 Ark. 249, 729 S.W.2d 170 (1987); see also Wicoff v.
State, 321 Ark. 97, 900 S.W.2d 187 (1995) (Brown, J., dissenting). As appellant abstracted the
necessary and material parts of the hearing testimony, this court did not find that his abstract was
flagrantly deficient or that re-briefing was warranted under these circumstances.
The State also complains that the judgment and commitment order was not contained in
appellant’s addendum. However, appellant was appealing from the order denying his Rule 37.1
petition and not from the judgment. As such, the omission of the judgment from the addendum was
not fatal to appellant’s pro se brief.
Finally, the State argues in its petition for rehearing that this court must affirm the decision
of the circuit court because the State pointed out in a footnote in its brief on appeal that Savage failed
to meet this court’s briefing requirements regarding the addendum. As authority, we are cited to
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Ark. Sup. R. 4-2(a)(8); however, the footnote does not argue why under Rule 4-2(a)(8) the case must
be affirmed. The argument in the footnote is not fully developed. In Peavy v. WFAA-TV, 221 F.3d
158 (5th Cir. 2000), the court declined to address an argument raised in a footnote because it was
not adequately briefed. This court has often stated that where a party fails to provide convincing
argument, we will not consider the merits of the argument. Springs v. State, ___ Ark. ___, ___
S.W.3d ___ (Dec. 7, 2006). We decline to address the issue in this case because it was raised in a
footnote and was not adequately briefed.
As the State’s petition for rehearing failed to state a specific error of law or fact contained
in the prior opinion, the petition is denied. As to the alternative prayer for remand for the trial court
to conduct a hearing on appellant’s Rule 37.1 petition, the State failed to cite any basis, legal or
otherwise, for this request other than appellant prevailed in his appeal. This request also has no
merit.
Also before us is appellant’s pro se motion for appointment of counsel. As this matter is
remanded to the trial court, any motions for appointment of counsel must be filed in the trial court.
Thus, the motion is denied.
Petition for rehearing denied; motion for appointment of counsel denied.
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