ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JOHNNY PEMBERTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-639

February 28, 2001

APPEAL FROM THE DREW COUNTY CIRCUIT COURT

[NO. CR-98-21-2]

HON. SAMUEL B. POPE,

CIRCUIT JUDGE

REBRIEFING ORDERED

The appellant in this criminal case challenges the sufficiency of the evidence to support his conviction of theft by receiving of a trailer. The State argues that the abstract is defective because the notice of appeal was not abstracted, because inculpatory evidence was omitted, and because it is single-spaced. We order rebriefing.

In Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000), the supreme court overruled prior precedent to hold that, in a criminal case, the omission of the notice of appeal does not render the abstract flagrantly deficient. The Johnson Court also held that single-spacing does not render an abstract flagrantly deficient, noting that:

The court of appeals found that appellant's abstract was flagrantly deficient because he single-spaced the portion of his

abstract which contains the trial proceedings and the pretrial hearing on the motion to suppress in violation of Ark. Sup. Ct. R. 4-1. Rule 4-1(a) states in relevant part that "briefs shall be double-spaced, except for quoted material, which may be single-spaced and indented." Id. Rule 4-1 also states that "briefs not in compliance with this rule shall not be accepted by the clerk." Ark. Sup. Ct. R. 4-1(d). We conclude that because a significant portion of appellant's abstract was single-spaced it did not comply with Rule 4-1(a). However, we note that the proper remedy for failure to comply with Rule 4-1, as provided by that rule, was for our clerk to refuse to accept the tendering of appellant's brief when it was presented to the clerk of the court's office. Our clerk improperly allowed the single-spaced brief to be filed in violation of Rule 4-1, and we do not hold that this mistake resulting from our clerk's failure to enforce the rule should be treated as a flagrant deficiency.

Johnson, supra, 342 Ark. at 363.

Given the holding in Johnson, it is clear that the single-spaced brief in this case was improvidently accepted in contravention of Ark. Sup. Ct. R. 4-1(d), and we direct rebriefing to comply with the double-spacing requirement of the rule. Although the State raises other concerns about the sufficiency of appellant's abstract, we do not address them at this time because we would need to read the single-spaced abstract to do so. We caution the appellant, however, that we will consider the State's other concerns after rebriefing, and we encourage appellant to rectify any and all deficiencies in his abstract during the rebriefing process.

Rebriefing ordered to comply with Rule 4-1(a).

Baker and Roaf, JJ., agree.