Frank Carl Davis v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

November 1, 2001

FRANK CARL DAVIS

Appellant

v.

LARRY NORRIS, Director,

Arkansas Department of Correction

Appellee

00-439

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CIV 99-2144 HONORABLE JOHN B. PLEGGE, JUDGE

AFFIRMED

Appellant pleaded guilty to the offense of rape and was sentenced to 120 months' imprisonment. On March 12, 1999, appellant filed a pro se petition for declaratory judgment under Ark. Code Ann. § 16-111-101 (1987). In his petition, appellant claims, inter alia, that his constitutional rights to due process and equal protection were violated by the application of the "seventy-percent rule" set forth in Ark. Code Ann. § 16-93-611(a) (Supp. 1997).

On August 2, 1999, appellant filed a motion for default judgment claiming that appellee did not respond to his petition within the prescribed time period. Appellee filed a motion to dismiss appellant's petition for failure to state a claim upon which relief may be granted pursuant to Ark. R. Civ. P. 12(b)(6). The circuit court agreed with appellee and by order dated January 11, 2000, dismissed the petition. From that dismissal comes this appeal. We decline to consider appellant's arguments, because he has failed to produce a record on appeal sufficient to demonstrate error.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the record consisting of the material parts of the record that are necessary to an understanding of the questions presented for decision.1 The abstracting requirement applies to those appellants who proceed pro se. Jackson v. State, 316 Ark. 509, 510, 872 S.W.2d 400, 400 (1994). It is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000). With the exception of material included in the addendum, the record on appeal is confined to that which is abstracted. Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999). We have noted that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Id. We will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996).

Appellant asserts two points on appeal, first, that the circuit court improperly dismissed his petition for declaratory judgment under Ark. R. Civ. P. 12(b)(6). Second, appellant asserts that the trial court abused its discretion in denying appellant's motion for default judgment. However, appellant has failed to adequately abstract the following: his petition, motion for default judgment, the State's brief in support of motion to dismiss, and the notice of appeal, all of which are necessary to an understanding of appellant's claims. Accordingly, appellant's failure to abstract critical documents precludes this Court from considering issues concerning it. Watson v. State, 329 Ark. 511, 512, 951 S.W.2d 304, 305 (1997).

Affirmed.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam).