The opinion
Robert L. Brown, concurring. There is a dramatic inconsistency in the majority’s treatment of the appellant, Herbert Wilson, and his court-appointed counsel in this case and the treatment of a pro se inmate a few short months ago. See Fruit v. Lockhart, 304 Ark. 457 , 802 S.W.2d 930 (1991). In Fruit the majority held that an inmate without the benefit of counsel who failed to abstract testimony in his brief had no recourse under Ark. Sup. Ct. R. 9(e)(2). The trial court judgment in Fruit which denied the inmate relief was summarily affirmed.
Now, since the appellant has court-appointed counsel, the majority has decided that it is unduly harsh to affirm the trial court judgment, and we are giving an appellant with counsel a second chance to correct a deficient abstract at his own expense. Why was the situation not unduly harsh, when a pro se inmate was effecting on his own and neglected to abstract the record? The appellant in this case had the benefit of counsel who presumably was familiar with our Rule 9(e)(2), or should have been. The same cannot be said of an inmate without counsel. Yet we give the appellant with counsel a second chance. We should have held just the opposite in this case and in Fruit v. Lockhart. The clear message from these two decisions is that an unrepresented appellant does not receive the same consideration under our rules as an appellant with counsel.