Cite as 2016 Ark. 86
SUPREME COURT OF ARKANSAS
No. CR-15-813
PHILLIP FLOYD
Opinion Delivered: March 3, 2016
APPELLANT
V. APPEAL FROM THE CARROLL
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [CR2014-136(ED)]
APPELLEE
HONORABLE SCOTT JACKSON,
JUDGE
SUPPLEMENTAL RECORD
ORDERED.
PER CURIAM
Appellant Phillip Floyd appeals the order of the Carroll County Circuit Court
disqualifying his lawyer, Gerald Kent Crow. The only issue on appeal is whether Crow
was disqualified from representation under Rule 1.12 of the Arkansas Rules of Professional
Conduct by his previous participation in the case as the judge who signed the affidavit of
probable cause for Floyd’s arrest warrant and presided over Floyd’s plea and arraignment
hearing. We are unable to reach the merits of Floyd’s issue on appeal because he failed to
file a sufficient record for our review.
Rule 1.12 provides that “a lawyer shall not represent anyone in connection with a
matter in which the lawyer participated personally and substantially as a judge . . . unless all
parties to the proceeding give informed consent, confirmed in writing.” Ark. R. Prof.’l
Conduct R. 1.12. In this case, the circuit court found that Crow’s participation in the case
violated Rule 1.12 and disqualified him from representing Floyd. On appeal, Floyd argues
Cite as 2016 Ark. 86
that the circuit court erred in disqualifying Crow because his signing the affidavit of probable
cause for the arrest warrant and presiding over the plea and arraignment hearing did not
constitute “personally and substantially” participating in the case as a judge. However,
neither the affidavit of probable cause for the arrest warrant nor a transcript of the plea and
arraignment hearing is included in the record.
In order for this court to adequately review Crow’s participation in the case as a
judge, we must have before us the affidavit of probable cause and a transcript of the plea and
arraignment hearing over which he presided. We recognize that the record presently before
us is abbreviated due to the materials requested by Floyd in his notice of appeal and
designation of the record. However, the State failed to object to the limitation, nor did it
file a designation of any additional materials it believed should have been included in the
record. We have held that where an appellee fails to object to the designation of the record
or designate any additional materials, the appellee has tacitly consented to the abbreviated
record. E.g., Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005).
Rule 6 of the Arkansas Rules of Appellate Procedure–Civil, as applied through Rule
4(a) of the Arkansas Rules of Appellate Procedure–Criminal provides, “Where parties in
good faith abbreviate the record by agreement or without objection from opposing parties,
the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the
record without notice to the appellant and reasonable opportunity to supply the deficiency.”
Ark. R. App. P.–Civ. 6(c). Further, pursuant to Rule 6(e), this court may, on its own
initiative, direct a party to file a supplemental record to correct an omission. Ark. R. App.
P.–Civ. 6(e).
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Pursuant to Rule 6(c) and (e), we order Floyd to supply this court with a certified,
supplemental record that includes a copy of the affidavit of probable cause for the arrest
warrant, if available, and a transcript of the plea and arraignment hearing over which Crow
presided, if available, within sixty days of the issuance of this opinion. Floyd is further
ordered to file a substituted abstract and addendum in compliance with Arkansas Supreme
Court Rule 4-2(a)(5) and (a)(8).
Supplemental record ordered.
Gerald K. Crow, for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
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