Johnny Warren v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 5, 2004

JOHNNY WARREN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-21

PRO SE MOTION FOR RECONSIDERATION OF MOTION TO REVERSE APPEAL (sic) [CIRCUIT COURT OF PULASKI COUNTY, CR 2001-4160, HON. WILLARD PROCTOR, JUDGE]

MOTION FOR RECONSIDERATION DENIED

Per Curiam

On July 1, 2002, Johnny Warren was found guilty by the court in a trial to the bench of misdemeanor driving while intoxicated, driving with a suspended license, refusal to submit to a blood analysis, and failure to wear a seatbelt. A fine of $500 was imposed. Warren was represented at trial by his appointed attorney, Gina Reynolds. The judgment was entered on July 15, 2002. On July 30, 2002, Warren filed a pro se "Motion for Post-Trial Relief," asking the court to reverse the conviction. The motion was deemed denied on August 29, 2002. An order denying the motion on the ground that the judgment was on appeal was not entered until November 7, 2002. On August 28, 2002, Warren had timely filed a notice of appeal.1

The record was tendered to the clerk of this court on December 11, 2002. Because the record was not received within ninety days of the effective date of the notice of appeal, Ms. Reynolds was advised that a motion for rule on the clerk would be necessary. Ms. Reynolds was considered Warren's attorney of record because there was no order in the record relieving her as counsel before the notice of appeal was filed. See Ark. R. App. P.--Crim. 16. On January 26, 2003, we directed Reynolds to file within thirty days of the date of the opinion a motion and affidavit accepting fault for the untimely tender of the record. Warren v. State, 351 Ark. 563, 97 S.W.3d 386 (2023)(per curiam).

On February 20, 2003, Reynolds requested that this court reconsider its January 26, 2003, decision because Warren had refused to communicate with her and never requested that she perfect an appeal. Warren responded that he had asked Reynolds to appeal. We remanded the matter to the trial court for an evidentiary hearing to determine whether Warren had requested counsel to appeal and whether Reynolds had complied with Ark. R. App. P.--Crim. 16, which sets out the obligations of trial attorney following entry of a judgment of conviction. Warren v. State, 352 Ark. ___, 101 S.W.3d 247 (2003)(per curiam).

The trial court held a hearing and found that Warren did not instruct Reynolds to lodge an appeal and that Reynolds had complied with Rule 16. We subsequently adopted the court's findings and granted the motion for reconsideration filed by Reynolds. We relieved Reynolds as counsel for Warren and directed Warren to show cause within forty-five days of the date of the opinion why the appeal should not be dismissed. Warren v. State, 353 Ark. ___, ___ S.W.3d ___ (June 26, 2003) (per curiam).

Within the forty-five day period, Warren filed a "motion to reverse appeal" in which he asked that the appeal be permitted to go forward. We treated the motion as a motion to permit the appeal and denied it. Warren v. State, CR 03-21 (Ark. October 23, 2003)(per curiam). Warren now reiterates the grounds previously raised and asks that his motion be reconsidered.

The motion for reconsideration is denied. We need not reiterate the grounds for denying the original motion which were set out at length in our prior opinion. It will suffice to say that petitioner failed to state a good cause for the failure to lodge the record in a timely manner. Accordingly, the motion to proceed with the appeal was denied, and there is no good cause stated in the instant motion for reconsideration of that decision.

Motion for reconsideration denied.

1 A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Ark. R. App. P.--Crim. 2(b)(2).