Michael Clay v. State of Arkansas

Annotate this Case
cr01-469

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 30, 2002

MICHAEL CLAY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 01-469

PETITION FOR REHEARING

(CIRCUIT COURT OF PULASKI COUNTY NO. CR 97-3974)

DENIED

We affirmed the circuit court's order denying appellant's Rule 37 petition on May 9, 2002. Clay v. State, CR 01-469 (Ark. May 9, 2002). In response to our decision, appellant has filed a petition for rehearing. Appellant contends that we erred as a matter of fact by denying review of the merits of appellant's appeal because of appellant's failure to adequately abstract the record. We find that appellant has failed to demonstrate any error of law or fact with our prior holding; thus, his petition is denied.

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. Appellant argues that our prior decision was unclear and that he was only directed to include the order appealed from in his addendum. In support of that contention, appellant asserts that we referred him to Ark. Sup. Ct. R. 4-2(8) in ordering rebriefing. We disagree with appellant'sassessment of our decision.

We specifically set out in our decision, Clay v. State, CR 01-469 (Ark. March 7, 2002), that appellant had failed to include the order appealed from in his addendum and that appellant's abstract was deficient. We directed appellant's attention to Ark. Sup. Ct. R. 4-2(8) because this is a fairly recent change to our brief requirements. However, that direction did not diminish the fact that we found appellant's abstract deficient. In the last paragraph of that decision, we ordered appellant to file a substituted abstract, Addendum, and brief to conform to Rule 4-2. At his own risk, appellant chose to maintain the same abstracted material as set forth in his first brief despite our indication that the abstract was deficient.

Appellant emphasizes that he noted three times in his brief that certain factual findings were made by the court of appeals and requested that we take judicial notice of those findings so that a lengthy abstract would not be necessary. In an appeal from the circuit court's order denying Rule 37 relief, we review the record and do not take judicial notice of findings of fact by the court of appeals in order to save the appellant from extensive abstracting. Because appellant's petition for rehearing does not call attention to any specific errors of law or fact, his petition for rehearing is denied.

Denied.

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