Johnifer Roston v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOHNIFER ROSTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-277

October 26, 2005

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[CR-03-120-5]

HON. JERRY E. MAZZANTI, CIRCUIT JUDGE

REBRIEFING ORDERED

Larry D. Vaught, Judge

Appellant Johnifer Roston appeals the August 9, 2004, judgment and commitment order issued by the Chicot County Circuit Court following his convictions for delivery of cocaine and misdemeanor possession of marijuana. He was sentenced to thirty years in the Arkansas Department of Correction on the cocaine charge and a fine of $250 for the possession of marijuana. Roston argues on appeal that the trial court erred in not suppressing certain contraband that was found in his home following an allegedly illegal search. Because Roston has submitted a brief with an abstract that is deficient under Ark. R. Sup. Ct. 4-2(a)(5), we order rebriefing.

Supreme Court Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to supply this court with a sufficient brief. The rule provides:

Whether or not the appellee has called attention to deficiencies in the appellant's abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). ... If after the opportunity to cure the deficiencies, the 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.

Ark. Sup. Ct. R. 4-2(b)(3).

In the present case, we cannot reach the merits of Roston's claims because the abstract is deficient. In his brief, Roston only abstracts a single hearing on a motion to suppress evidence of marijuana found in his home. However, similar contraband was also discovered in a separate search of his business, but there is no mention of this search in his abstract. Further, his notice of appeal indicates that he is appealing his thirty-year sentence, which corresponds with his conviction for delivery of cocaine, yet his abstract and argument on appeal contain no mention of cocaine whatsoever. Based on the abstract presented, we cannot determine whether Roston suffered prejudice based on the underlying evidence presented at trial.

We hereby order Roston to submit a substituted brief that contains a revised abstract. Roston is directed to file the substituted brief within fifteen days from the entry of this order. Pursuant to Rule 4-2(b)(3), if he fails to file a complying brief within the prescribed time, the judgment may be affirmed for noncompliance with the rule.

After service of the substituted brief, the State shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk or to rely on the brief that it has previously filed in this appeal.

Rebriefing ordered.

Griffen and Roaf, JJ., agree.