Amos v. State

¶1dissenting.

¶2Amos appealed on a merit issue and on the grounds that his sentence was excessive. His statement of points on appeal raised the same two issues. But his brief before the court of appeals only argued the merit issue. It met with partial success, for the court of appeals remanded the merit issue for further findings by the superior court while retaining jurisdiction of the appeal. After the superior court made findings on remand that were adverse to Amos, he sought leave in the court of appeals to brief the sentencing issue. The court denied this motion. I believe that the court did not abuse its discretion in doing so.

¶3The appellate rules require that briefs actually discuss points raised on appeal; points that are not discussed are considered to be abandoned.1 While a court in its discretion might allow an appellant to present an un-*1047briefed point in a supplemental brief filed before a case is submitted for decision, I think the more usual action would be to deny such a request, especially if it were made after the appellee had prepared a responding brief. Here the request was made not only after the appellee had filed a responding brief, but after the case had been submitted for decision, after it was actually decided, and, for that matter, after it was decided on remand. Refusing to grant a request for supplemental briefing at this late stage, in my opinion, cannot be an abuse of discretion.

¶4The court of appeals decision did not leave Amos without a remedy on his claim of ineffective assistance of counsel. That claim can be litigated in an orderly fashion in collateral proceedings as is normally done in claims of ineffective assistance.2 I would therefore either affirm the decision of the court of appeals or dismiss the petition as improvidently granted.