Bufford McDonald v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 13, 2001

BUFFORD MCDONALD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-710

PETITION FOR REHEARING

CIRCUIT COURT OF POPE COUNTY

NO. CR 98-104

PETITION DENIED

We affirmed the circuit court's denial of McDonald's Rule 37 petition based on an insufficient abstract. McDonald v. State, CR 00-710 (Ark. November 15, 2001). McDonald has filed a petition for rehearing in response to our decision. He contends that he abstracted all relevant material necessary for a review of his appeal. We deny McDonald's petition.

Rule 2-3 (g) of the Rules of the Arkansas Supreme Court provides that rehearing lies only for the purpose of calling attention to specific errors of law or fact which the opinion is thought to contain. In our decision denying appellant's Rule 37 petition, we found that appellant had failed to abstract his plea statement and Rule 37 hearing. In addition, McDonald's abstract was not an impartial condensation of the record without comment or emphasis. The abstract in the appeal was clearly insufficient, and a petition for rehearing cannot serve to cure the deficient abstract. Thus,the petition for rehearing is denied.1

We have said repeatedly that the record on appeal is confined to that which is properly abstracted because it is not feasible for the seven justices of this court to each examine the record. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1984); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). When an abstract is deficient, the lower court's judgment or order must be affirmed. See Fruit v. State, 304 Ark. 457, 802 S.W.2d 930 (1991). We will not explore the record for prejudicial error. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387; Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987).

Petition denied.

Imber, J., not participating.

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).