King v. State

Everett L. KING v. STATE of Arkansas

CR 96-165                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 8, 1996


1.   Appeal & error -- court does not presume error simply because
     an appeal is made -- appellant has burden of bringing up
     record sufficient to demonstrate error. -- A summary of the
     pleadings and the judgment appealed from are the bare
     essentials of an abstract; the court does not presume error
     simply because an appeal is made; it is the appellant's burden
     to produce a record sufficient to demonstrate error; the
     record on appeal is confined to that which is abstracted;
     there is only one transcript, there are seven judges on the
     supreme court, and it is impossible for each of the seven
     judges to examine the one transcript; the court will not
     explore the record for prejudicial error except in death or
     life-imprisonment cases where a motion, objection, or request
     on the point at issue was made before the trial judge.

2.   Appeal & error -- abstract flagrantly deficient -- issues not
     considered. -- Appellant's failure to abstract the order
     appealed from and other critical documents precluded the
     supreme court from considering issues concerning them; the
     trial court's judgment was affirmed.


     Appeal from Washington Circuit Court; David Burnett, Judge;
affirmed.
     John R. Hudson, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate, for appellee.

     Andree Layton Roaf, Justice.July 8, 1996
*ADVREP*SC10*







EVERETT L. KING,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.






CR96-165


APPEAL FROM THE WASHINGTON 
COUNTY CIRCUIT COURT,
NO. CR 92-7,
HON. DAVID BURNETT, JUDGE,




AFFIRMED.
                   Justice Andree Layton Roaf



     Everett L. King was convicted of possession of a controlled
substance with intent to deliver and delivery of a controlled
substance.  He was sentenced to 36 years imprisonment.  This court
previously affirmed that conviction on direct appeal. King v.
State, 314 Ark. 205, 862 S.W.2d 229 (1993).  However, we reversed
the denial of King's subsequent Rule 37 petition challenging his
sentence.  We held that the trial court erred in allowing King's
former counsel to remain in the courtroom throughout the Rule 37
hearing after King had invoked A.R.E. Rule 615; King had alleged
numerous ineffective assistance of counsel claims.  We specifically
stated that King was entitled to a new Rule 37 hearing. King v.
State, 322 Ark. 51, 907 S.W.2d 127 (1995).  On remand, the trial
court again denied King's petition.  King appeals from this second
denial of his Rule 37 petition.
     King argues on appeal that: (1) the trial court erred by
entering the order summarily denying his petition without
conducting a new Rule 37 hearing as directed by this court; (2) the
trial court was without jurisdiction to enter this order because he
was outside of Washington County when he prepared the order; and
(3) the criminal justice coordinator erred in refusing to permit
King's request for a writ of mandamus to be considered by this
court.  We hold that King's abstract is flagrantly deficient in
violation of Ark. Sup. Ct. R. 4-2(a)(6), and we affirm.
     The following is a verbatim reproduction of the abstract
submitted by King's counsel:
                             MANDATE
                             (Tr. 3)

                SUPREME COURT OF ARKANSAS OPINION
                            (Tr. 4-9)

                     CERTIFICATION OF CLERK
                            (Tr. 10)

                        TRIAL COURT ORDER
                           (Tr. 11-12)

              LETTER FROM SUPREME COURT COORDINATOR
                DENYING PETITIONER'S REQUEST FOR
                        WRIT OF MANDAMUS
                            (Tr. 13)

           NOTICE OF APPEAL AND DESIGNATION OF RECORD
                            (Tr. 14)

                     CERTIFICATE OF SERVICE
                            (Tr. 15)

                  CERTIFICATE OF COURT REPORTER
                            (Tr. 16)

                  CERTIFICATE OF CIRCUIT CLERK
                            (Tr. 17)
     
     We have often held that a summary of the pleadings and the
judgment appealed from are the bare essentials of an abstract. D.
Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995). 
This court does not presume error simply because an appeal is made.
Mayo v. State, 324 Ark. 322, 920 S.W.2d 843 (1996).  It is the
appellant's burden to produce a record sufficient to demonstrate
error, and the record on appeal is confined to that which is
abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). 
The reason underlying our abstracting rule is basic -- there is
only one transcript, there are seven judges on this court, and it
is impossible for each of the seven judges to examine the one
transcript. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).  We
will not explore the record for prejudicial error, except in death
or life-imprisonment cases where a motion, objection, or request on
the point at issue was made before the trial judge. Watson v.
State, 313 Ark. 304, 854 S.W.2d 332 (1993).
     King's failure to abstract the order appealed from and other
critical documents precludes this court from considering issues
concerning them. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400
(1994).
     Affirmed.
     DUDLEY, J., not participating.