Dean v. Plegge

Howard DEAN v. Hon. John B. PLEGGE

CR 97-797                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 21, 1998


1.   Prohibition, writ of -- record must be sufficient for review.
     -- A party seeking a writ of prohibition must produce a record
     that is sufficient for the supreme court's  review; the record
     must show the writ is clearly warranted.  

2.   Prohibition, writ of -- record insufficient for review -- no
     way to tell whether writ warranted. -- Where petitioner failed
     to include in the record a transcript of the speedy-trial
     hearing and the trial court's findings, the supreme court
     could not determine the periods of time that the trial court
     may have found to be excluded in accordance with Ark. R. Crim.
     P. 28.3; from the record presented, there was no way of
     knowing whether the trial court erred in denying the motion to
     dismiss; the supreme court could not tell from the record that
     the writ was clearly warranted.   

 3.  Appeal & error -- where brief required so is abstract --
     petitioner's abstract flagrantly deficient. -- In cases when
     there is no emergency or need for accelerated proceedings,
     briefs are required as in other cases; an abstract is,
     therefore, required; here, petitioner's abstract was
     flagrantly deficient because it did not include the motion to
     dismiss for lack of speedy trial, the hearing on the motion,
     and the basis of the trial court's ruling; the abstract must
     contain a summary of all the documents necessary for the
     supreme court to obtain an understanding of the questions
     presented for review. 

4.   Prohibition, writ of -- abstract deficient -- petition denied.
     -- Where the abstract presented did not inform the court of
     the basis of the motion or if there were periods of time found
     to be excludable from the one-year time period provided in
     Ark. R. Crim. P. 28.1, and petitioner, as a part of his
     abstract, included a stipulation purportedly signed by his
     counsel and the prosecutor that was filed with the trial court
     apparently subsequent to the speedy-trial proceedings
     conducted there; however, there was no indication that the
     stipulation was accepted, approved, or even seen by the trial
     court, and it did not address the contents of the motion to
     dismiss, the speedy-trial hearing, or the basis of the trial
     court's denial of the motion to dismiss, the petition for writ
     of prohibition was denied. 


     Petition for Writ of Prohibition; denied.
     Montgomery, Adams & Wyatt, PLC, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.
     David Newbern, Justice.
     Petitioner Howard Dean seeks a writ of prohibition to prevent
the Perry County Circuit Court from retrying him on a murder charge
following a mistrial.  Mr. Dean alleges that he filed a motion,
pursuant to Ark. R. Crim. P. 28.1(d), to dismiss for lack of speedy
trial in the Circuit Court and that the motion was denied.  We must
deny Mr. Dean's petition for a writ of prohibition because the
record and abstract do not contain the information necessary for us
to rule on the issues presented in Mr. Dean's petition.  
     A party seeking a writ of prohibition must produce a record
that is sufficient for our review.  See Ark. R. Sup. Ct. 6-1(a). 
The record must show that the writ is clearly warranted.  Sherwood
v. Glover, 331 Ark ___, ___ S.W.2d ___ (1998).  See also Davis v.
State, 319 Ark. 171, 889 S.W.2d 769 (1994); Beasley v. Graves, 315
Ark. 663, 869 S.W.2d 20 (1994).  
     In his statement of the case, Mr. Dean informs us that the
mistrial occurred on February 12, 1996, and that his motion to
dismiss was made more than a year later.  Mr. Dean has, however,
failed to include in the record presented to us a transcript of the
speedy-trial hearing and the Trial Court's findings; thus, we
cannot know the periods of time that the Trial Court may have found
to be excluded in accordance with Ark. R. Crim. P. 28.3.   From the
record presented, we have no way of knowing whether the Trial Court
erred in denying the motion to dismiss.  We cannot tell from the
record that the writ is clearly warranted.  See Dixon v. State, 314
Ark. 378, 863 S.W.2d 282 (1993).  
     In addition we point out that, in cases such as this one when
there is no emergency or need for accelerated proceedings, briefs
are required as in other cases.  Ark. R. Sup. Ct. 6-1(e).  An
abstract is, therefore, required.  The petitioner's abstract is
flagrantly deficient as it does not include the motion to dismiss
for lack of speedy trial, the hearing on the motion, and the basis
of the Trial Court's ruling.  According to Ark. R. Sup. Ct. 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.  Sherwood v. Glover, supra; Lewis v. State,
330 Ark. 618,     S.W.2d     (1997); Richmond v. State, 326 Ark.
728, 934 S.W.2d 214 (1996).
     In Dixon v. State, supra, we refused to consider whether the
Trial Court erred in denying the appellant's motion to dismiss for
lack of speedy trial when the appellant's abstract did not
summarize the proof at the hearing, the findings of fact by the
Trial Court, or the written order of the Trial Court.  We could not
know the periods of time that the Trial Court found to be excluded,
and we had no way of knowing whether the Trial Court erred.  
       Although Mr. Dean's abstract reflects that the Trial Court
denied his motion to dismiss, the abstract presented does not
inform us of the basis of the motion or if there were periods of
time found to be excludable from the one-year time period provided
in Ark. R. Crim. P. 28.1.
     As a part of his abstract, Mr. Dean included a stipulation
purportedly signed by his counsel and the prosecutor that was filed
with the Trial Court apparently subsequent to the speedy-trial
proceedings conducted there.  There is no indication that the
stipulation was accepted, approved, or even seen by the Trial
Court.  The stipulation sets forth some facts with respect to the
speedy trial issue, including dates showing the duration of certain
continuances granted by the Trial Court.  It then provides that two
of the continuances are "the only contested continuances that are
in need of review."  It does not, however, address the contents of
the motion to dismiss, the speedy-trial hearing, or the basis of
the Trial Court's denial of the motion to dismiss.  Even if the
stipulation had addressed those crucial matters, we would not
accept it as a substitute for a record.  See Rodgers v. U. of A.
Med. Sciences, 275 Ark. 139, 628 S.W.2d 11 (1982).  
     Petition denied.