STATE of Arkansas v. TIEN Ngoc Doan and Trung
Do
CR 96-348 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered September 23, 1996
Appeal & error -- motion to affirm trial court's order affirmed --
interlocutory appeal dismissed. -- Where, in its appeal of a
pretrial order suppressing appellees' confessions, the State
first obtained a seven-day clerk's extension, and then the
supreme court granted the State six extensions of time in
which to file its brief, designating the last a final
extension; where the State's brief was not filed by the
specified deadline; and where, in a per curiam opinion handed
down well before the final deadline granted in the instant
case, the supreme court stated that it would not entertain
appeals by the State when the State's brief is not filed in
accordance with the specified deadline in the final extension,
the supreme court affirmed the trial court's pretrial order
granting appellees' motion to suppress their statements and
dismissed the State's interlocutory appeal.
Motion to Affirm; granted.
Winston Bryant, Att'y Gen., by: Kelly K. Hill, Deputy Att'y
Gen., for appellant.
Sam Sexton III and Jeanne Ann Whitmire, for appellees.
Per Curiam.
The appellees in this case, Tien Ngoc Doan and Trung Do, move
to affirm the pretrial order of the Sebastian County Circuit Court
suppressing their confessions. The State appealed the order, and
on March 18, 1996, the record was filed with the clerk of this
court. The State's original brief was due on April 27, 1996.
According to the records of the Clerk of this court, a seven-day
clerk's extension was first obtained and then this court granted
the State six extensions of time in which to file its brief: (1)
May 6, 1996; (2) May 22, 1996; (3) June 10, 1996; (4) June 21,
1996; (5) July 2, 1996, and (6) July 13, 1996. The extension
granted on July 13, 1996, was designated a final extension and
required that the State's brief be filed by July 26, 1996. The
State's brief was not filed by that deadline.
On June 3, 1996, this court issued a per curiam opinion in a
case where the State had obtained nine extensions in which to file
its brief in a State appeal. State v. Parkman, 325 Ark. 35, 923
S.W.2d 281 (1996). In Parkman, we noted that the State had
obtained three extensions beyond the date of the final extension.
We concluded that if the State's brief was not filed by a date
certain, the appeal would be dismissed. The brief was not filed by
that date, and the appeal was dismissed on June 24, 1996. We
stated in Parkman:
Henceforth, we will not entertain appeals by the State
when the State's brief is not filed in accordance with
the specified deadline in the final extension granted by
this Court.
325 Ark. at 36, 923 S.W.2d at 282.
The Attorney General in the case before us has filed a
response to the appellees' motion to affirm in which it is stated
that the staff attorney assigned to the case has been replaced.
The Attorney General states that he cannot explain why the original
counsel missed the deadline and apologizes for the lapse. We note,
nonetheless, that the Parkman per curiam opinion was handed down on
June 3, 1996, which was well before the final deadline granted by
this court in the instant case of July 26, 1996. In accordance
with our clear directive in the Parkman per curiam, we affirm the
order of the trial court and dismiss the State's appeal.
Glaze, J., dissents.
TOM GLAZE, Associate Justice
Appellees Tien Ngoc Doan and Trung Do are charged with the
murder of Thavone Mousom and with engaging in violent criminal
group activity. Appellees retained an Oklahoma attorney who first
advised them to refuse to give any statement. After charges were
actually filed against appellees, they executed a waiver-of-rights
form on advice of their attorney and gave incriminating statements.
Doan and Do then plead guilty, but the trial court later set aside
their pleas because their attorney was not licensed in Arkansas.
The trial court granted appellees' motion to suppress their
statements, and the State filed this interlocutory appeal.
In this appeal, the Attorney General's office has been granted
six extensions for a total of eighty-nine days in order to file its
brief. The last extension was designated final extension. The
State has now tendered its brief, but the majority court has
refused the brief and dismissed the State's appeal.
I write to point out that this court has never dismissed an
appeal in a criminal case because a brief was tendered late. Over
the past two years, this court has routinely allowed belated briefs
to be filed by appellants who were convicted defendants with
counsel. For some reason, the court now unfairly dismisses the
State's appeal because it was eighty-nine days late. In 1994 and
1995, this court allowed defendants, who were convicted and
appealed, to file briefs that were later than eighty-nine days and
after final extensions were granted. Examples of those cases are
as follows:
1994 1995
Case No. Days Case No. Days
CR94-0030 105 CR95-0150 134
CR94-0113 180 CR95-0296 111
CR94-0238 180 CR95-0408 149
CR94-0267 134 CR95-0546 120
CR94-0322 156 CR95-0645 150
CR94-0358 209 CR95-0711 90
CR94-0558 90 CR95-1027 120
CR94-0590 92 CR95-1039 138
CR94-0838 90 CR95-1309 118
CR94-0848 202
CR94-0995 270
CR94-1183 120
CR94-1340 112
CR94-1389 99
No reason exists for treating the State more harshly when it
files a late brief than a convicted defendant when his or her
attorney is late. Nonetheless, under today's decision, when an
attorney representing a convicted defendant is late, as described
above, this court still accepts the brief, but not so, if the
attorney represents the State. Obviously, it is the public, not
the State's attorney, who will unjustifiably suffer the
consequences. In simple terms, the majority court's per curiam is
wrong.
