Jessie James Duckett, III v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

JESSIE JAMES DUCKETT, III

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-294

FEBRUARY 21, 2001

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR 97-562]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

APPEAL DISMISSED

The appellant, Jessie James Duckett, III, was tried and convicted of aggravated robbery by a jury in Garland County. Appellant was sentenced to fifteen years' imprisonment. Appellant is appealing this conviction arguing that his motion to suppress the search of his mother's home should have been granted because the search warrant was illegally obtained. We dismiss this appeal for failure to file a timely record.

After the trial court entered its Judgment and Commitment order, appellant filed a Motion for New Trial on March 23, 1999. The trial court did not rule on the motion within thirty days, thus pursuant to Arkansas Rule of Appellate Procedure--Criminal 2(b)(1)(2000) it was deemed denied on April 22, 1999. Rule 2(b)(1) states that "if the trial court neither grants nor denies the [post-trial] motion within thirty (30) days of its filing, the

motion shallbe deemed denied by operation of law as of the thirtieth day . . . ."

Thus, appellant's deadline for filing the record was seven months later on November 22, 1999. See Ark. R. App. P.--Civ. 5(b). This rule is applicable to criminal cases as matters regarding docketing of the record in criminal appeals are governed by the Rules of Appellate Procedure-Civil. Ark. R. App. P.--Crim. 4(a) (2000). Arkansas Rules of Appellate Procedure--Civ. 5(b) provides in relevant part that the trial court may extend the time for filing the record on appeal but "[i]n no event shall the time be extended more than seven (7) months from the date of the entry of the judgment . . ." except in the event of a post-judgment motion under Ark. R. App. P.--Civ. 4(b). Appellant did not file the record until March 9, 2000, as he had obtained an extension from the trial judge to March 10, 2000. The trial judge extended the time for filing the record to a time which was outside the seven-month period, but the court had no authority to take such action. See Coggins v. Benton, 45 Ark. App. 189, 873 S.W.2d 820 (1994). A trial court cannot extend the time for the filing of the record to a date more than seven months from the date of entry of the judgment, except in the event of a post-judgment motion under Rule 4(b) and in that case it is seven months from the date on which the motion is deemed to have been disposed of. In re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992). When an appellant seeks an extension of time beyond the seven months to file the record, appellant's remedy is to file a partial record and seek an extension for a compelling reason, such as an unavoidable casualty. Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994). Appellant cannot succeed based on the action of the judge who approved the extension to March 10, 2000. November 22, 1999,was the final date for lodging this appeal. It is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal. Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985).

Appeal dismissed.

Hart and Jennings, JJ., agree.