Opinion
CR 98-109
Opinion delivered February 26, 1998
1. APPEAL ERROR — MOTION FOR RULE ON CLERK — WHEN GRANTED. — The supreme court will grant a motion for rule on the clerk, which will be treated as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. 2. APPEAL ERROR — MOTION FOR RULE ON CLERK DENIED — ATTORNEY DID NOT ADMIT FAULT. — Where the record was not timely filed and the attorney did not admit fault on his part, the supreme court denied the motion for rule on the clerk; a statement that it was someone else's fault or no one's fault will not suffice.
Motion for Rule on the Clerk; denied.
Robert N. Jeffrey, for appellant.
No response.
Henry Lee Brazil, by his attorney, has filed a motion for rule on the clerk. The motion states that the record was not timely filed and that it was no fault of the appellant.
Appellant filed a notice of appeal and designation of record on October 17, 1997, following the entry on September 25, 1997 of terms and conditions of suspended imposition of sentence. Subsequently, on December 12, 1997, the Dallas County Circuit Court entered a judgment convicting appellant of burglary and theft of property. Appellant did not timely file a notice of appeal after entry of the judgment. Appellant's attorney states that the record, as certified by the Dallas County Circuit Clerk on December 23, 1997, did not contain the judgment and commitment order filed on December 12, 1997. Appellant's attorney further suggests that if the Dallas County Circuit Clerk had complied with Administrative Order No. 8, Section III.a, as amended on December 4, 1997, and forwarded a copy of the judgment and commitment order to appellant's counsel of record, he could have filed a timely notice of appeal.
[1, 2] This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else's fault or no one's fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant's motion must be denied.
The appellant's attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See Warren v. State, 329 Ark. 637, 950 S.W.2d 462 (1997).
The present motion for rule on the clerk is denied.