ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

DAVID BRADY

Petitioner

v.

STATE OF ARKANSAS

Response

CR 01-393

PRO SE PETITION FOR REVIEW and MOTION FOR RULE ON CLERK [CIRCUIT COURT OF LEE COUNTY, NO. CR 98-57, HON. HARVEY YATES, JUDGE]

PETITION FOR REVIEW DENIED; MOTION FOR RULE ON CLERK GRANTED IN PART AND DENIED IN PART

David Brady was found guilty of driving while intoxicated, refusing a breathalyzer test; driving with a suspended license, fleeing, reckless driving, driving without a seatbelt, driving without a vehicle license, and driving with no liability insurance. He was sentenced to one day in jail with credit for time served, his driver's license was suspended for six months, and he was fined $700.

An appeal of the judgment to the court of appeals was perfected, and counsel for Brady filed a brief and motion to be relieved on the ground that the appeal was wholly without merit pursuant to Ark. Sup. Ct. R. 4-3(j)(1) and Anders v. California, 386 U.S. 738 (1967). The court of appeals affirmed. Brady v. State, CACR 99-992 (March 7, 2001).

Now before us are Brady's pro se petition for review1 and motion for rule on clerk. Both the petition for review and the motion for rule on clerk pertain to Ark. Sup. Ct. R.4-3(j)(2), which provides that the clerk of the court will provide the appellant with a copy of the brief filed by his attorney so that he may submit within thirty days any points for reversal he wishes the court to consider. In petitioner's case, his attorney filed a "no merit" brief to which appellant responded with points for reversal. The court of appeals subsequently found counsel's brief to be inadequate and directed that he file a substituted brief. Brady v. State, CACR 99-992 (July 5, 2000). The substituted brief was mailed to petitioner at the same address used to mail the first brief. The substituted brief was returned by the post office with "unclaimed, returned to sender" stamped on it. The court of appeals noted in its opinion affirming the judgment that the attempt to provide petitioner with a copy of counsel's brief had been unsuccessful.

Petitioner argues that because he was not served with a copy of the substituted brief, the court of appeals erred in not providing the full examination of the proceedings required by Anders, supra. He further contends that the court of appeals should have considered the points for reversal he filed with respect to the first brief filed by counsel and should not have relieved counsel. Petitioner also raises several claims of ineffective assistance of counsel.

The petition for review is denied. Rule 2-4(c) provides that a petition for review must allege that either the case was decided by a tie vote of the court of appeals, or the court of appealsrendered a decision which is in conflict with a prior holding of a published opinion of this court or the court of appeals, or that the court erred with respect to one of the grounds listed in Ark. Sup. Ct. R. 1-2(b). Petitioner contends that the court of appeal's decision conflicted with Anders and other cases in that it failed to show that appellant's points for reversal were wholly frivolous. The court, however, was not obligated to consider the points filed by petitioner in response to the first brief filed by counsel which was ultimately stricken by the court. A copy of the substituted brief was duly mailed to petitioner at the address used for all other correspondence with him. The brief was not claimed by petitioner, and the court of appeals was not wrong to go forward with its decision. If a court were required to place a case in abeyance until the appellant agreed to accept delivery of a "no merit" brief, the orderly administration of justice would be unjustifiably curtailed.

As to the motion for rule on clerk, petitioner contends that our clerk wrongfully declined to make available to him pursuant to the Freedom of Information Act all records pertaining to the mailing of the second brief, including a copy of the mail receipt showing the receipt number, the original envelope in which the second brief was mailed, and the memorandum to the court of appeals from the staff attorney who mailed the second brief advising the court that the brief had been returned marked "unclaimed." He concedes that the clerk provided him with a photocopy of the envelope showing the "unclaimed" stamp and allowed him access to the entire file with the exception of the memorandum from the staff attorney to the court, the content of which was set out in the court of appeal's opinion.

While petitioner was provided with a photocopy of the envelope showing the "unclaimed"stamp, the copy did not reflect the entire front of the envelope including the printed "return receipt" number. Also, petitioner was not provided with a copy of the contents of the envelope to which he was entitled. Accordingly, we direct that a copy of the full front of the envelope and the contents of the envelope be provided to petitioner.

The memorandum from the staff attorney to the court of appeals and the staff attorney's file were not matters of public record subject to disclosure under the Freedom of Information Act.

Petition for review denied; motion for rule on clerk granted in part and denied in part.

1 The State in its response contends that the petition for review was not timely filed. Petitioner tendered the petition for review in a timely manner on March 26, 2001, but as it exceeded the length permitted for such petitions by Ark. Sup. Ct. R. 2-4(a), he was allowed seven days to correct it, making the petition due no later than April 3, 2001. Petitioner filed the petition on that date; thus it was timely filed.