Eubanks v. State
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Cite as 2011 Ark. 214
SUPREME COURT OF ARKANSAS
No.
CR11-406
Opinion Delivered M ay 12, 2011
WILLIAM MACK EUBANKS,
PETITIONER
MOTION FOR BELATED APPEAL
VS.
STATE OF ARKANSAS,
RESPONDENT
MOTION TREATED AS MOTION
FOR RULE ON CLERK AND
GRANTED.
PER CURIAM
Petitioner William Mack Eubanks, by and through his attorney, John Wesley Hall, has
filed a motion for belated appeal. We affirmed his conviction and sentence in Eubanks v. State,
2009 Ark. 170, 303 S.W.3d 450. On November 3, 2010, the circuit court entered a letter
order denying petitioner’s request for postconviction relief, and petitioner timely filed his
notice of appeal on November 24, 2010. Petitioner’s attorney states in the motion that the
record was tendered late due to a mistake on his part. Thus, we treat his motion for belated
appeal as a motion for rule on clerk. Carroll v. State, 2010 Ark. 33 (per curiam).
This court clarified its treatment of motions for rule on clerk and motions for belated
appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). In that case, we said that
there are only two possible reasons for an appeal not being timely perfected: either the party
or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146
S.W.3d at 891. We explained:
Cite as 2011 Ark. 214
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he or she has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald, supra, petitioner’s counsel has candidly admitted fault.
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee
on Professional Conduct.
Motion for belated appeal treated as motion for rule on clerk and granted.
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