Sherwood v. Glover

Laura SHERWOOD v. Hon. Don E. GLOVER, Judge

CR 97-268                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Appeal & error -- petitioner bears burden of producing record
     and abstract sufficient for review -- party seeking writ of
     prohibition must produce record sufficient to show that writ
     is warranted. -- The appellant, or the petitioner as in this
     case, bears the burden of producing a record and an abstract
     sufficient for review; a petitioner seeking a writ of
     prohibition must produce a record sufficient to show that the
     writ is clearly warranted.

2.   Appeal & error -- petitioner failed to produce record that
     demonstrated that writ was clearly warranted -- writ of
     prohibition denied. -- Where petitioner failed to include in
     the record a transcript of the hearing, the court's findings,
     and the order in which the court concluded that the State had
     not violated her right to a speedy trial, the supreme court
     denied the petition for a writ of prohibition without
     addressing the merits because petitioner failed to produce a
     record that demonstrated that the writ was clearly warranted. 
     

3.   Appeal & error -- abstract flagrant deficient -- neither
     summary of documents nor abstract of evidence presented at
     trial given. -- Petitioner's abstract was flagrantly deficient
     in that, pursuant to Ark. Sup. Ct. R. 4-2(a)(6), the abstract
     did not contain a summary of all the documents necessary for
     the supreme court to obtain an understanding of the questions
     presented for review; without this information, it was
     impossible to determine whether the trial court erred in
     denying the speedy-trial motion; petitioner also failed to
     abstract the evidence presented during the speedy-trial
     hearing, the court's findings, and the court's written order;
     the supreme court was unable to conduct a meaningful review of
     the trial court's ruling on her motion to dismiss.   

4.   Appeal & error -- abstract flagrantly deficient -- merely
     listing names of pleadings and orders insufficient. -- The
     documents which petitioner included in her abstract were
     improperly summarized; her abstract was flagrantly deficient
     under Ark. Sup. Ct. R. 4-2 because petitioner merely listed
     the names of the pleadings and orders and the date on which
     they were filed without summarizing their contents; scattered
     references to the record contained in the argument portion of
     the brief are not sufficient to meet the court's abstracting
     requirements under Ark. Sup. Ct. R. 4-2. 



     Petition for Writ of Prohibition; denied.
     Katharine C. Day, for petitioner.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for respondent.

     Annabelle Clinton Imber, Justice.
     Petitioner, Laura Sherwood, seeks a writ of prohibition to
prevent the Ashley County Circuit Court from trying her on three
criminal charges.  Sherwood alleges that the Ashley County Circuit
Court denied her motion to dismiss the charges on speedy-trial
grounds, and she now presents her petition to this court pursuant
to Ark. R. Crim. P. 28.1, which provides that criminal charges must
be dismissed if the defendant is not tried within twelve months. 
We must deny the writ because the record and abstract do not
contain all the information necessary for us to resolve the issues
presented in Sherwood's petition.
     It is well settled that the appellant, or the petitioner as in
this case, bears the burden of producing a record and an abstract
sufficient for our review. Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); Cosgrove v. City of West Memphis, 327 Ark. 324,
938 S.W.2d 827 (1997).  In several other speedy-trial cases we have
clarified that a petitioner seeking a writ of prohibition must
produce a record sufficient to show that the writ is clearly
warranted.  Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994);
Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994).  Sherwood
has failed to include in the record a transcript of the hearing,
the court's findings, and the order in which the court concluded
that the State had not violated her right to a speedy trial. 
Hence, as in Davis and Beasley, we must deny the petition without
addressing the merits because Sherwood has failed to produce a
record that demonstrates that the writ is clearly warranted.  
     In addition, Sherwood's abstract is flagrantly deficient in
two respects.  First, pursuant to Ark. Sup. Ct. R. 4-2(a)(6), the
abstract must contain a summary of all the documents necessary for
us to obtain an understanding of the questions presented for
review.  Lewis v. State, 330 Ark. 618,    S.W.2d    (1997);
Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996).  For
example, in Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993), we
refused to address the merits of a speedy-trial argument because
the petitioner failed to include in his abstract the evidence
presented during the hearing, the trial court's findings, and the
court's written order.  Without this information, it was impossible
for us to determine whether the trial court erred in denying the
speedy-trial motion.  Id.     In this case, Sherwood has failed to
abstract the evidence presented during the speedy-trial hearing,
the court's findings, and the court's written order.  Hence, as in
Dixon, we are unable to conduct a meaningful review of the trial
court's ruling on her motion to dismiss.   
     Moreover, the documents which Sherwood has included in her
abstract are improperly summarized.  Arkansas Supreme Court Rule 4-
2(a)(6), declares that:  
     the document or the necessary portions of the document
     must be abstracted.  Mere notation such as "plaintiff's
     exhibit no. 4" is not sufficient.
In King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996), we 
recently held that an abstract was flagrantly deficient under Ark.
Sup. Ct. R. 4-2, when the appellant merely listed the names of the
pleadings and orders without summarizing their contents.  As in
King, Sherwood's abstract only contains a list of pleadings and the
date on which they were filed without summarizing the contents. 
Granted, Sherwood does refer to the contents of these documents
throughout the body of her argument.  We, however, have
continuously held that scattered references to the record contained
in the argument portion of the brief are not sufficient to meet the
court's abstracting requirements under Ark. Sup. Ct. R. 4-2. Lewis
v. State, 330 Ark. 618,    S.W.2d    (1997); National Enters., Inc.
v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997).
     For these reasons, we summarily deny Sherwood's petition for
a writ of prohibition.