Michael Fulton v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 10, 2002

MICHAEL FULTON

Appellant

v.

LARRY NORRIS, Director,

Arkansas Department of Correction

Appellee

00-1188

APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY, LCIV 00-35-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

In 1999, appellant pled guilty to eight felonies in the Faulkner County Circuit Court. The negotiated sentences imposed by the circuit court included 180 months' imprisonment for the crimes of manufacture of methamphetamine and possession of methamphetamine with intent to deliver, and 60 months' imprisonment on each of the other six felonies. The circuit court ordered the sentences to run concurrently, for a total of 180 months' imprisonment.

In 2000, appellant filed a pro se petition for writ of mandamus in the Lincoln County Circuit Court seeking to have his 180 month sentences reduced to 120 months' imprisonment. He contended that no departure report was attached to his judgment and commitment order, and therefore, his 180 month sentences should be reduced to the presumptive sentence time under the Arkansas Sentencing Commission's Sentencing Standards Grid. The circuit court denied appellant's petition, finding that the required departure report signed by the sentencing court wasattached to appellant's judgment and commitment order.

The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Arkansas-Democrat Gazette v. Zimmerman, 341 Ark. 771, 777, 20 S.W.3d 301, 304 (2000). A writ of mandamus is issued by this court only to compel an official or judge to take some action, and when requesting the writ, a petitioner must show a clear and certain right to the relief sought and the absence of any other remedy. Id.

On appeal, appellant has abandoned the claim raised in his petition. He now argues that the basis for the sentencing court's departure from the presumptive sentence was not appropriate under the law. It is well settled, however, that parties may not change their argument on appeal and are limited to the scope and nature of their arguments made below. Hunter v. State, 330 Ark. 198, 203, 952 S.W.2d 145, 148 (1997). Moreover, appellant has failed to abstract the departure report that is critical to his argument. The record on appeal is confined to that which is abstracted, and the failure to abstract a critical document precludes us from considering issues concerning it on appeal. Davis v. State, 345 Ark. 161, 177, 44 S.W.3d 726, 736 (2001). Accordingly, the order of the circuit court denying appellant's petition is affirmed.

Affirmed.

Imber, J., not participating.