Kimberly Mutafis v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 24, 2004

KIMBERLY MUTAFIS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-245

SECOND PRO SE PETITION FOR WRIT OF CERTIORARI AND TO STAY BRIEFING SCHEDULE [CIRCUIT COURT OF SALINE COUNTY, NO. CR 2003-189-3, HON. GARY M. ARNOLD, JUDGE]

PETITION FOR WRIT OF CERTIORARI AND TO STAY BRIEFING SCHEDULE DENIED; EXTENSION OF TIME TO FILE APPELLANT'S BRIEF GRANTED (FINAL EXTENSION)

                                                                                                                  Per Curiam

On September 30, 2003, judgment was entered reflecting that Kimberly Mutafis had pleaded guilty to five felony offenses and been sentenced to an aggregate term of 150 months' imprisonment. On December 19, 2003, Mutafis filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37.1, seeking to have the judgment vacated. The petition was denied, and the record on appeal from that order has been lodged here.

Appellant Mutafis filed a petition for writ of certiorari, seeking to bring up parts of the record that she contended were necessary to the appeal but which were omitted from the record when it was prepared by the circuit clerk. Specifically, she desired to supplement the record with the transcript of the drug court proceedings in her case, records of "sanctions" which resulted in her incarceration while in the drug court program, and all docket sheets. Those records apparently pertained to her admittance in July 2003 to the Saline County Adult Drug Court program whereby she agreed to abide by certain conditions. According to the state's response to her Rule 37.1 petition,she failed to complete the program satisfactorily, and, as a result, was sentenced to the Arkansas Department of Correction to serve a term of imprisonment.1 We denied the petition for writ of certiorari. Mutafis v. State, CR 04-245 (Ark. April 29, 2004) (per curiam).

Now before is appellant's second petition for writ of certiorari and to stay the briefing schedule. In the petition, appellant reiterates her contention that the drug court sanctions, which resulted in brief periods of incarceration while in the drug program, amounted to a sentence placed into execution and thus it was improper for her to be sentenced to the Arkansas Department of Correction after she was dismissed from the drug program. The court rejected this argument in its order denying the Rule 37.1 petition, and appellant has failed to demonstrate that this conclusion was based on any material she presented to the court in conjunction with the Rule 37.1 petition which was omitted from the record.

Having found no good cause to stay the appeal, the briefing schedule will remain in place. The time to file the appellant's brief is extended to forty days from the date of this opinion. As this extension of time is the second such extension granted to appellant, no further extensions will be allowed.

Petition for writ of certiorari and to stay briefing schedule denied; extension of time to file appellant's brief granted (final extension).

1 The state urged the court to dismiss the Rule 37.1 petition on the ground that appellant had agreed to waive all proceedings under the rule when she was admitted to the drug program. We reserve comment on whether that waiver was sufficient to extinguish her right to a postconviction remedy until briefs are filed and the issue is submitted to us.