Edward S. McWilliams v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR 08-738
EDWARD S. MCWILLIAMS,
APPELLANT,
Opinion Delivered September 4, 2008
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
MOTION TREATED AS BELATED
APPEAL; GRANTED.
PER CURIAM
Appellant Edward S. McWilliams, by and through his attorney, Robert N. Jeffrey, has
filed a motion for rule on clerk. Appellant pled guilty to possession of a firearm by certain
person on November 23, 2004, was sentenced to probation for five years and ordered to pay
a fine, court costs, and attorneys’ fees. By judgment and commitment order entered March 4,
2008, Appellant’s probation was revoked, and he was sentenced to eighty-four months in the
Arkansas Department of Correction. On March 14, 2008, an amended judgment and
commitment order was entered to correct a clerical error that the commitment was a result
of the revocation of his probation. Appellant filed a notice of appeal on April 7, 2008, from
the judgment and commitment order entered March 4, 2008. The record was completed and
filed with the trial court on June 19, 2008, and tendered to the clerk of this court on June 23,
2008. The supreme court clerk refused to file the record because the notice of appeal was
filed more than thirty days after the first judgment and commitment order was entered.
Appellant’s counsel filed this motion for rule on clerk, candidly admitting therein that
he did not file the notice of appeal within thirty days of the entry of the first judgment.
Where a motion for rule on clerk is filed in error, it will be treated as a motion for belated
appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Despite Appellant’s failure
to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to
consider his first appeal when counsel has failed to follow appellate rules. Morris v. State, 373
Ark. 190, ___ S.W.3d ___ (2008) (per curiam) (citing Franklin v. State, 317 Ark. 42, 875
S.W.2d 836 (1994) (per curiam)). Consistent with our explanation of handling motions for
rule on clerk and belated appeals in McDonald, 356 Ark. 106, 146 S.W.3d 883, we consider
this a motion for belated appeal. Because counsel candidly admits fault, we grant the motion
for belated appeal and direct the clerk of this court to accept the record and docket the appeal.
We forward this opinion to the Committee on Professional Conduct.
Motion treated as belated appeal; granted.
-2-
CR 08-738
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