Opinion
Delivered January 31, 1994
There has been some uncertainty surrounding the application of the "deemed denied" principle of Rule 4(c) of the Appellate Rules of Procedure to criminal appeals following a post-trial motion. Rule 4(c) by its terms embraces post-trial motions made under the Rules of Civil Procedure but there is no specific reference in Rule 4(c) to post-trial motions in criminal appeals. Nor is there a reference to the "deemed denied" principle of Rule 4(c) in Criminal Procedure Rule 36.9 which concerns criminal appeals. We have held in this regard that the "deemed denied" principle of Rule 4(c) does apply to criminal appeals where a post-trial motion for a new trial has been filed. Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993) (per curiam).
We adopt this Amended Rule 36.9, effectively immediately, to clarify that if a post-trial motion in the nature of a motion for a new trial or amendment of judgment is not resolved by the trial court within 30 days from the date of its filing, it is deemed denied under Rule 4(c), and an appeal must be taken within 30 days from the date that the motion is deemed denied.
We further include in amended Rule 36.9 a provision arising out of our case law relating to the invalidity of a notice of appeal filed before the entry of the judgment or order or on or before the "deemed denied" date for purposes of Rule 4(c). See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993) (per curiam), affirming Kimble v. Gray, 40 Ark. App. 196, 842 S.W.2d 473 (1992).
Finally, the amended rule provides that the "deemed denied" principle does not apply to Rule 37 petitions. Appeals may be taken within 30 days after the Rule 37 petition is actually denied by the trial court irrespective of whether that denial occurs more than 30 days after the petition is filed.
RULE 36.9. TIME AND METHOD OF TAKING APPEAL.
(a) Within thirty (30) days from
(1) the date of entry of a judgment; or
(2) the date of entry of an order denying a post-trial motion under Rule 36.22; or
(3) the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the Rules of Appellate Procedure; or
(4) the date of entry of an order denying a petition for postconviction relief under Rule 37,
the person desiring to appeal the judgment or order shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order appealed.
(b) A notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from or if it is filed on or before the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the Rules of Appellate Procedure.
(c) The notice of appeal shall include either a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter or a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal.
(d) Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives and to the Attorney General, but failure to give such notification shall not affect the validity of the appeal.
(e) Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.
(f) If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant. [Amended by per curiam October 25, 1976; amended December 18, 1978; amended by per curiam January 25, 1988, effective March 1, 1988; amended by per curiam January 31, 1994.]
Commentary
This rule applies in Rule 37 cases only as to appeals from an actual denial of the Rule 37 petition: the "deemed denied" provision of Appellate Procedure Rule 4(c) does not apply to Rule 37 petitions.