PER CURIAM

Timothy Ruffin appeals from an order denying post-conviction DNA testing. His attorney, Jon T. Evans, has filed a motion to abate the appeal and to extend the time for filing his brief.

Counsel asks that the appeal be abated because the reporter's record has not been filed. The clerk's record contains no request for the preparation of a reporter's record. In any event, the record reflects that the court did not conduct a hearing on the testing motion. The court's ruling was based on Ruffin's motion and the State's response. Insofar as we can determine, there is no reporter's record to prepare. ⁽¹⁾ The motion to abate is overruled.

Counsel's motion for extension of time to file his brief is granted. Jon T. Evans is ordered to tender a brief for filing no later than June 17, 2008.

It is ordered May 14, 2008.

Before Justices Patterson, Puryear and Henson

Do Not Publish

1. If counsel is referring to the reporter's record from Ruffin's 1987 trial for aggravated sexual assault, the record reflects that Ruffin waived trial by jury and entered a guilty plea.