Bobby G. Thomas v. State of Arkansas

Bobby G. THOMAS v. STATE of Arkansas

CR 96-528                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 2, 1997


1.   Appeal & error -- motion for order compelling circuit clerk to provide
     trial record treated as motion to supreme court for access. -- Where the
     trial record was on file with the supreme court rather than
     the circuit court, the supreme court treated the part of
     appellant's motion asking that the circuit clerk be compelled
     to provide him with the trial record as a motion to the
     supreme court for access to the trial record. 

2.   Appeal & error -- motion for access to trial record denied -- copy of
     record to facilitate postconviction appeal not provided without showing
     that record is necessary. --  Appellant's motion for access to the
     trial record was denied because appellant did not state that
     there was any specific point that could not be raised in the
     postconviction appeal without the trial record, or some
     portion of it, being provided to him; the supreme court will
     not provide a copy of a trial record to facilitate a
     postconviction appeal without a showing that the record is
     necessary; that is, the appellant must set out specific
     anticipated points for reversal to be contained in the
     appellant's brief that cannot be properly raised without
     access to the trial record to prepare the abstract that
     underlies the points; appellant had not made such a showing. 
     
3.   Appeal & error -- appellant's motion for extension of time to file brief
     granted. -- Appellant was granted an extension of thirty days
     from the date of the supreme court's opinion to file his
     brief.


     Pro Se Motion for Extension of Time to File Appellant's Brief
and for Order Compelling Circuit Clerk to Provide Trial Record to
Appellant; granted in part and denied in part.
     Appellant, pro se.
     No response.

     Per Curiam. 
     In 1992, Bobby G. Thomas was found guilty in the Circuit Court
of Miller County of murder in the first degree and sentenced as a
habitual offender to life imprisonment.  We affirmed.  Thomas v.
State, 315 Ark. 518, 868 S.W.2d 25 (1994).  Mr. Thomas subsequently
filed in the trial court a timely petition pursuant to Criminal
Procedure Rule 37 seeking to vacate the judgment.  The petition was
denied, and this court granted a belated appeal of the order
denying relief.  Thomas v. State, CR 96-528 (July 8, 1996). 
Appellant then sought a copy of the record to prepare his brief and
an extension of time to file it.  We granted an extension of time
and directed that the record of the Rule 37 proceedings be
forwarded to the Arkansas Department of Correction, which has
custody of appellant, so that he could prepare his brief.  The
brief was due Saturday, January 18, 1997.  On January 21, 1997,
appellant filed the motion which is now before us seeking another
extension of time to file the brief and asking that we compel the
Circuit Clerk of Miller County to forward a copy of the trial
record to him.  
     Because the trial record is on file with this court, not the
circuit court, we will treat that part of the motion asking that
the circuit clerk be compelled to provide appellant with the trial
record as a motion to this court for access to the trial record. 
The motion is denied because appellant does not state that there is
any specific point which cannot be raised in the postconviction
appeal without the trial record, or some portion of it, being
provided to him.  This court will not provide a copy of a trial
record to facilitate a postconviction appeal without a showing that
the record is necessary; that is, the appellant must set out
specific anticipated points for reversal to be contained in the
appellant's brief which cannot be properly raised without access to
the trial record to prepare the abstract which underlies the
points.  Appellant has not made such a showing.  
     Appellant is granted an extension of thirty days from the date
of this opinion to file the appellant's brief.
     Motion granted in part and denied in part.