Patton v. State

Charles PATTON v. STATE of Arkansas

CR 95-230                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


Appeal & error -- motion for rule on clerk -- good cause for 
     granting. -- Where appellant's attorney did not file another
     motion for rule on the clerk with respect to a January 1994
     judgment until February 1996 -- almost nine months after the
     supreme court, in a May 1995 per curiam order, had given him
     thirty days to concede fault in failing to timely file the
     record in the present case -- and where appellant's attorney
     admitted fault in failing to file the record on time in that
     motion, the supreme court considered the delay in filing the
     motion to be extreme but concluded that such an error,
     admittedly made by counsel for a criminal defendant, was good
     cause to grant the motion.


     Motion for Rule on the Clerk; granted.
     John Frank Gibson, for appellant.
     No response.

     Per Curiam.*ADVREP9*
March 4, 1996






CHARLES PATTON,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 95-230




MOTION FOR RULE ON THE CLERK






GRANTED.





                           Per Curiam.

     On August 5, 1993, Charles Patton was found guilty by a jury
of three counts of delivery of a controlled substance and was
sentenced to ten years imprisonment on each count.  Patton, who was
represented at trial by his retained attorney, John Frank Gibson,
Jr., filed a timely pro se notice of appeal.  Gibson lodged the
record on appeal in the Arkansas Court of Appeals on March 7, 1994,
but the appeal (CACR 94-570) was dismissed on February 1, 1995, on
the basis that Gibson had failed to file the appellant's brief.  On
February 28, 1996, the appeal was reinstated by the court of
appeals in a per curiam order.
     Patton had also been found guilty in a separate proceeding of
a fourth count of delivery of a controlled substance.  Judgment in
that case was entered January 5, 1994.  On March 9, 1995, Gibson
tendered the record to this court in case CR 95-230 with a motion
for rule on the clerk which was necessary because the record was
not filed in a timely manner.  On April 3, 1995, we denied the
motion for rule on the clerk but stated that if Gibson would
concede that the untimeliness of the record filing was his fault
within thirty days, or if other good cause was shown, the motion
would be granted.  Patton v. State, 320 Ark. 271, 895 S.W.2d 531
(1995) (per curiam).  With respect to the conviction on three
counts of delivery of a controlled substance, we stated that we
could not grant relief because the court of appeals had dismissed
the appeal in CACR 94-570.  We noted that Gibson had erroneously
merged the two cases.
     On April 10, 1995, Gibson filed a motion in CACR 94-570 (or CR
95-230) in which he again confused the two appeals.  He admitted
fault for not filing a brief.  However, the sole issue before this
court was counsel's conduct in the appeal of the separate January
5, 1994 judgment.  On May 15, 1995, the motion was denied.  Patton
v. State, 320 Ark. 513, 898 S.W.2d 446 (1995) (per curiam).  In
that order, we again gave Gibson 30 days to concede fault in
failing to timely file the record in this case.
     Gibson did not file another motion for rule on the clerk in
this court with respect to the January 5, 1994 judgment until
February 6, 1996 -- almost nine months after our second per curiam
order.  Gibson admitted fault in failing to file the record on time
in that motion.  While we consider the delay in filing the motion
to be extreme, we consider such an error admittedly made by counsel
for a criminal defendant to be good cause to grant the motion.  See
In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per
curiam).
     The motion is, therefore, granted.  A copy of this opinion
will be forwarded to the Committee on Professional Conduct.
     Glaze, J., not participating.