Kenneth Dana Brewton v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR07-330
KENNETH DANA BREWTON,
Opinion Delivered May 3, 2007
APPELLANT,
MOTION FOR RULE ON CLERK.
VS.
STATE OF ARKANSAS,
APPELLEE,
REMANDED.
PER CURIAM
Appellant, Kenneth Dana Brewton, by and through his attorney, John W. Settle, has
filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk
refused to accept the record. The record before us does not show strict compliance with
Arkansas Rules of Appellate Procedure – Rule 5(b)(1)(C), as all parties have not had an
opportunity to be heard on appellant’s motions to extend time for filing the transcript.
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the
determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, ___
S.W.3d ___ (2006)(per curiam). Rule 5(b)(1) provides in pertinent part:
(1) If any party has designated stenographically reported material for inclusion in the
record on appeal, the circuit court, by order entered before expiration of the period
prescribed by subdivision (a) of this rule or a prior extension order, may extend the
time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a
hearing or by responding in writing;
Id. We have made it clear that there must be strict compliance with the
requirements of Rule 5(b), and that we do not view the granting of an extension as a mere
formality. See White v. State, 366 Ark. 295, ___ S.W.3d ___ (2006); Rackley v. State, 366
Ark. 232, ___ S.W.3d ___ (2006). As the record before us does not comply with this rule,
we remand this case to the trial court for compliance with Rule 5(b)(1)(C).
Remanded.
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