Watson v. State

Robert WATSON v. STATE of Arkansas

CR 96-425                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 6, 1996


1.   Appeal & error -- notice of appeal must contain statement that
     transcript has been ordered -- appellant did not do so. --
     Arkansas Rule of Appellate Procedure 3(e) provides in part
     that "the notice of appeal shall also contain a statement that
     the transcript, or specific portions thereof, have been
     ordered by the appellant"; even though appellant should have
     immediately ordered the reporter's transcript, neither the
     partial record filed nor the trial court's order extending the
     time to file the record indicated that the trial court made a
     finding that the transcript had been ordered. 

2.   Certiorari -- appellant's attorney failed to timely file
     record -- petition for writ of certiorari denied. -- The
     appellant's attorney is responsible for filing the record, not
     the trial judge, the court reporter, or the circuit clerk;
     appellant's attorney was ordered to file a timely motion and
     affidavit accepting full responsibility for not timely filing
     the transcript, upon the filing of which the motion would be
     granted; the petition for a writ of certiorari was denied.
     

     Petition for Writ of Certiorari denied.
     John F. Stroud, III, for appellant.
     No response.

     Per Curiam.May 6, 1996.   *ADVREP8*




                                   CR 96-425




ROBERT WATSON,                     PETITION FOR WRIT OF
                    APPELLANT,     CERTIORARI

V.

STATE OF ARKANSAS,
                    APPELLEE.      DENIED.



                           PER CURIAM



     Appellant Robert Watson asks this Court to grant a writ of
certiorari to complete the record in his case.  We deny the writ.
     Watson was convicted of delivery of a controlled substance and
sentenced to thirty years imprisonment.  The judgment and
commitment order was entered on September 7, 1995, and the notice
of appeal was filed on September 26, 1995.  The time to file the
record was extended by the trial court to April 6, 1996, which was
a Saturday.  On Monday, April 8, 1996, Watson filed a partial
record with the Clerk and filed this petition for writ of
certiorari for complete record.  In his petition, Watson states:
     the Court Reporter, Betty Voltz, has indicated that she
     cannot have the record completed prior to April 6, 1996. 
     Due to an administrative oversight caused by the lengthy
     illness of Judge Purifoy, which resulted in his office
     being closed for several months, the preparation of the
     transcript in this matter has not been completed due to
     the lack of timely notice but, given an additional 30
     days, she will be able to do so.  A copy of her Affidavit
     is hereto attached.
The affidavit of Ms. Betty J. Voltz provides:
     I, Betty J. Voltz, Official Court Reporter for the Eighth
     Circuit and Chancery District of Arkansas, state that due
     to an administrative oversight caused by the lengthy
     illness of Judge Philip Purifoy, which resulted in his
     office being closed for several months, the preparation
     of the transcript in State of Arkansas v. Robert Watson,
     Lafayette County Case. No. CR-92-50-3 has not been
     completed due to my lack of timely notice of the need for
     preparation of this transcript and that the
     aforementioned appeal transcript can be completed and
     filed with the Clerk by the 6th day of May, 1996.
(Emphasis supplied.)
     Rule of Appellate Procedure 3(e) provides in part that "[t]he
notice [of appeal] shall also contain a statement that the
transcript, or specific portions thereof, have been ordered by the
appellant."  (Emphasis supplied.)  Thus, Watson should have
immediately ordered the reporter's transcript.  Jacobs v. State,
321 Ark. 561, 906 S.W.2d 670 (1995).  However, there is no
indication in the partial record filed that this was done.
     On December 4, 1995, the trial court entered an order granting
Watson "the maximum length of time until April 6, 1996, to lodge
the transcript with the Arkansas Supreme Court."  Rule of Appellate
Procedure 5(a) provides that the record on appeal shall be filed
with the Clerk of the Supreme Court within ninety days from the
filing of the notice of appeal.  However, the trial court, upon
finding that a reporter's transcript of evidence or proceedings has
been order by appellant, and upon a further finding that an
extension is necessary for the inclusion in the record of evidence
or proceedings stenographically reported, may extend the time for
filing the record on appeal.  Ark. R. App. P. 5(b).  In the instant
case, neither the partial record filed nor the trial court's order
extending the time to file the record indicates that the trial
court made a finding that the transcript had been ordered.  See
Jacobs v. State, supra.
     We have consistently held that the appellant's attorney is
responsible for filing the record, not the trial judge, the court
reporter, or the circuit clerk.  Norman v. State, 323 Ark. 447, 916 S.W.2d 724 (1996).  The appellant's attorney shall file within
thirty days from the date of this per curiam a motion and affidavit
in this case accepting full responsibility for not timely filing
the transcript, and upon filing same, the motion will be granted
and a copy of the opinion will be forwarded to the Committee on
Professional Conduct.
     Writ denied.