ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
September 25, 2003

VERA A. ARNOLD

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-675

PRO SE MOTIONS FOR CLARIFICATION OR DEVELOPMENT OF LAW AND FOR APPEAL BOND, TO STRIKE APPELLEE'S RESPONSE TO MOTION FOR APPEAL BOND, TO EXPAND APPELLANT'S BRIEF, TO RESET BRIEFING SCHEDULE, AND FOR RETURN OF SEIZED PROPERTY [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-692, HON. WILLARD PROCTOR, JUDGE]

MOTIONS FOR CLARIFICATION OR DEVELOPMENT OF LAW AND FOR APPEAL BOND, TO STRIKE APPELLEE'S RESPONSE TO MOTION FOR APPEAL BOND, TO EXPAND APPELLANT'S BRIEF, AND FOR RETURN OF SEIZED PROPERTY DENIED; MOTION TO RESET BRIEFING SCHEDULE TREATED AS MOTION FOR EXTENSION OF TIME TO FILE BRIEF AND GRANTED

Per Curiam

Vera A. Arnold was found guilty of attempted capital murder and theft by receiving and sentenced to an aggregate term of forty years' imprisonment. The court of appeals affirmed. Arnold v. State, CACR 99-35 (November 3, 1999). We denied a petition for review. Arnold v. State, CR 99-1370 (per curiam order, January 13, 2000).

Arnold subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. On August 2, 2000, the court entered an order denying the petition. An appeal was not perfected, and Arnold filed in this court a pro se motion for belated appeal of the order which was granted. Arnold v. State, CR 01-277 (Ark. October 11, 2001). On appeal, we remanded the matter to the trial court for additional findings of fact and conclusions of law. Arnold v. State, CR 01-277 (Ark. April 11, 2002). (per curiam). The trial court denied the petition, and Arnold has lodged an appeal from that order. Now before us are a series of motions filed by appellant Arnold which total with exhibits in excess of 200 pages. For the sake of clarity, the motions will be addressed separately.

Motion for Clarification or Development of Law or Overruling Precedent
in Masson v. State, 687 Ark. 849 (1985) to Comply with Ruling in Hensley v.
Municipal Court, San Jose-Milpitas Judicial District, Santa Clara, 411 U.S. 345
(1973), and for Appeal Bond in Rule 37 Case of First Impression

In the motion, appellant asks that this court consider the issue of whether an appeal bond is available to an appellant appealing from the denial of a Rule 37.1 petition. Appellant cites this court's holding in Mason v. State, 285 Ark. 484, 687 S.W.2d 849 (1985), which said that an appellant whose judgment of conviction was affirmed was not entitled to remain free on appeal bond by virtue of having filed a Rule 37.1 petition for postconviction relief. She argues that Mason is in conflict with the precedent in Hensley v. Municipal Court, San Jose-Milpitas Judicial District, Santa Clara, 411 U.S. 345 (1973), a case which pertained to whether a person who has been released on his own recognizance pending execution of a sentence is "in custody" within the meaning of 28 U.S.C. §§ 2241(c)(3), 2254(a). Appellant's reliance on Hensley is misplaced inasmuch as it concerns an interpretation of a federal statute. This court is not bound by Hensley to make our postconviction rule available to persons who are not "in custody" as defined by our rule and State precedents. Appellant is not entitled pursuant to Rule 37.1 to be released on bond pending the resolution of this postconviction appeal.

Motion to Strike State's Response to Motion for Appeal Bond

Appellant tendered a response to the State's response to her motion pertaining torelease on appeal bond. She was advised that the prevailing rules of procedure did not allow for response to the response to be filed, and thus her response would be tendered to the court. Appellant responded with the instant motion seeking to strike the State's response in which she contends that her motion should be granted. The motion is denied as the State's response was timely filed and not improper.

Motion to Expand Brief, Jurisdictional Statement, Statement of
the Case and Arguments

Appellant argues that she should be permitted to file a brief with an expanded jurisdictional statement, statement of the case, and argument portion because the issues are complex and it is impossible to address the seven points for reversal she intends to raise in the page limits set by our rules. She also contends that the case is a matter of "first impression" on several issues. Specifically, she asks to be permitted to expand the jurisdictional statement from the three pages permitted by our rule to five pages, to expand the statement of the case to nine pages and insert abstract page numbers and make other "reasonable clerical corrections," and to expand the argument portion of the brief from the twenty five pages allowed to ninety pages and insert abstract page numbers and make other "reasonable clerical corrections." Finally, appellant asks this court to determine whether it wishes to address certain arguments and offer guidance by specifying those issues now.

First, this court does not issue guidance to an appellant with respect to the content of a brief. As to appellant's desire to exceed the page limits set by the rules, the record in this appeal is not so voluminous nor are the issues so necessarily convoluted that appellant should be permitted to exceed the page limits for any portion of her brief.

Motion to Reset Briefing Schedule after Complete Rule 37 Record
is Lodged or, in the alternative, for Extension of Time to File Brief

Appellant contends that the record lodged in this appeal is only a partial record which she lodged so as to be able to file "preliminary motions" in the appeal and that the court reporter is in the process of preparing a transcript of the evidentiary hearing held in the trial court. She has appended to the motion a copy of an order entered in the trial court granting an extension of time to October 20, 2003, to prepare the transcript. If the record is not complete, appellant is responsible for tendering the supplemental record with a motion to add it to the record already lodged. The time to file the appellant's brief is extended forty days from the date of this opinion. If appellant desires, she may file another motion for time when the supplement record is tendered.

Motion for Return of Seized Things or, in the alternative, for
Release of Exhibits

Appellant asks that items seized from her by law-enforcement officers be returned to her or alternatively that the exhibits filed with the appeal of the judgment in her case be returned to her. Criminal Procedure Rule 15.2(a)(i) provides that any request for return of seized items must be addressed to the court having jurisdiction of the offense. An order entered denying the request may be appealed. Accordingly, it is the trial court, not this court, which has jurisdiction to consider the request.

As to appellant's request that the exhibits to the record lodged in the direct appeal of her judgment be returned to her, the instant appeal is of the denial of relief in her collateral attack on the judgment under Rule 37.1. If she should prevail and a new trial is ultimately granted, then she may proceed to recover the items lodged as defense exhibits to use in the new trial. The motion is at best premature.

Motions for clarification or development of law and for appeal bond, to strike appellee's response to motion for appeal bond, to expand appellant's brief, and for return of seized property denied; motion to reset briefing schedule treated as motion for extension of time to file brief and granted.

Thornton, J., not participating.