Billy Joe Kelly v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR08-926
BILLY JOE KELLEY,
Opinion Delivered December
4, 2008
APPELLANT,
APPEAL FROM THE PULASKI
COUNTY, CIRCUIT COURT,
NO. CR07-1169, HON. WILLARD
PROCTOR, JUDGE.
VS.
STATE OF ARKANSAS,
APPELLEE,
REBRIEFING ORDERED.
PER CURIAM
APPEAL & ERROR – NONCOM PLIANCE WITH RULE 4-2 – REBRIEFING ORDERED.– Instead of abstracting the
transcript of the testimony as required by Arkansas Supreme Court Rule 4-2(a)(5), appellant
provided a verbatim transcript of the testimony, and the abstract was not in the first person;
because appellant failed to comply with Rule 4-2, he was ordered to abstract the testimony and
to file a substituted brief.
William P. Luppen, for appellant.
No response.
Appellant Billy Joe Kelley appeals his conviction for rape and sentence of life
imprisonment.
Because Kelley has submitted a brief without a proper abstract, which is in
violation of Arkansas Supreme Court Rule 4-2 (2008), we order rebriefing.
Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to
supply this court with a sufficient brief and states, in pertinent part:
Whether or not the appellee has called attention to deficiencies in the
appellant’s abstract or Addendum, the Court may address the question at any
time. If the Court finds the abstract or Addendum to be deficient such that the
Court cannot reach the merits of the case, or such as to cause an unreasonable
or unjust delay in the disposition of the appeal, the Court will notify the
appellant that he or she will be afforded an opportunity to cure any deficiencies,
and has fifteen days within which to file a substituted abstract, Addendum, and
brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere
modifications of the original brief by the appellant, as by interlineation, will not
be accepted by the Clerk. Upon the filing of such a substituted brief by the
appellant, the appellee will be afforded an opportunity to revise or supplement
the brief, at the expense of the appellant or the appellant’s counsel, as the Court
may direct.
Rule 4-2(a)(5) provides, in pertinent part: “In the abstracting of testimony, the first person
(i.e., “I”) rather than the third person (i.e., “He, She”) shall be used.”
In the present case, a jury trial was held February 5-6, 2008. Instead of abstracting the
transcript of the testimony as required by Rule 4-2(a)(5), Kelley provides a verbatim transcript
of the testimony, and the abstract is not in the first person.
Because Kelley has failed to
comply with our rule, we order Kelley to abstract the testimony and to file a substituted brief
within fifteen days from the date of entry of this order.
Rebriefing ordered.
-2-
CR08-926
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