Craig v. State , 64 Ark. App. 281 ( 1998 )

Per Curiam.

The appellant was convicted of first-degree murder and filed an appeal. After the record on appeal was lodged, appellant asserted that the transcript of the proceedings did not accurately reflect the trial judge’s ruling on his motion to dismiss at trial. Appellant filed a motion for a writ of certiorari to complete the record, identifying the portion of the transcript he alleged to be inaccurate and attaching several affidavits to support his allegation. We granted this motion and, on June 17, 1998, remanded the matter to the trial court with directions to settle the record. On receipt of our order, the trial judge reviewed the transcript, listened to the recording from which the transcript was made, and found that the transcript of the proceedings was accurate. This finding was incorporated in an order settling the record dated July 20, 1998.

Appellant filed a second motion for writ of certiorari to complete the record on October 15, 1998. In it, he again asserts that the transcription of the record was inaccurate and requests that the matter be remanded for the record to be settled. As grounds for his motion, appellant asserts that the trial court’s order settling the record was contrary to the affidavits filed by appellant, and argues that a hearing was necessary in order to “really”settle the record. We deny this motion for the reasons set out below.

The appellant has not alleged that the transcript of the record omits the trial judge’s ruling on his motion to dismiss; instead, appellant asserts that the record as transcribed misstates that ruling. Rule 6(e) of the Arkansas Rules of Appellate Procedure — Civil provides that:

Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.

Rule 6(e) does not expressly require that a hearing be held in order to settle the record. Although there are undoubtedly cases where a hearing would be helpful, and perhaps necessary, to determine whether the transcription of the record contains a misstatement of what transpired below, appellant in the case at bar never requested a hearing in his initial motion.¹ To the contrary, appellant’s initial motion requested only that “the Court Reporter should be ordered to review and correct those errors in the transcript.” We granted the relief requested and, in the absence of any allegation of bias or wrongdoing on the part of the trial judge, we see no significance in the fact that on remand the transcript was reviewed by the trial judge rather than the court reporter. Appellant having been afforded the relief he requested in his initial motion for writ of certiorari to complete the record, the present motion is denied.

Motion denied.

Bird, Arey, Neal, Griffen, and Roaf, JJ., dissent.

1 There is, in addition, no indication that appellant requested the trial judge to conduct a hearing after we granted his initial motion and the case was remanded.