Mayfield v. State

Vastie MAYFIELD v. STATE of Arkansas

CR 95-937                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


1.   Appeal & error -- attorney's duty to timely give notice of
     appeal and file record. -- It is an attorney's duty to timely
     give a notice of appeal and file the record.

2.    Appeal & error -- motion for belated appeal granted. -- The
     supreme court granted the motion for belated appeal, noting
     that, in the present case, the notice of appeal was not timely
     given, the record was tendered more than seven months after
     the entry of judgment, and, after the supreme court had denied
     the rule on the clerk and directed counsel to file a motion
     for a belated appeal, counsel waited another five months to
     file this motion for belated appeal.


     Motion for Belated Appeal; granted.
     Paul Johnson, for appellant.
     No response.

     Per Curiam.March 18, 1996   *ADVREP12*





VASTIE MAYFIELD,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR95-937


MOTION FOR BELATED APPEAL,




MOTION GRANTED.



                           Per Curiam.




     The procedural facts, according to appellant's motion, reflect
the following.  The judgment of conviction was entered on November
1, 1994.  A "notice of appeal" was filed by a "Reverend" Stephen
Womack on November 21, 1994.  On November 23, 1994, counsel for
appellant filed a motion to set aside the notice of appeal and also
filed a motion to set aside the judgment of conviction.  More than
thirty days passed with no action by the trial court on either
motion, yet no notice of appeal was timely filed by appellant.
     On March 6, 1995, the trial court ruled that the original
notice of appeal was ineffective and entered an order denying
appellant's motion to set aside the judgment of conviction. 
Appellant alleges that he "promptly" filed a notice of appeal. 
Sometime later, appellant tendered a record to the clerk of this
court, but the clerk refused to file it because it was untimely.  
     Our automatic case tracking system, or docket book, reflects
that on August 8, 1995, appellant filed a motion for a rule on the
clerk.  On September 18, 1995, we denied the motion "without
prejudice to filing a motion for a belated appeal."  On February
13, 1996, the clerk sent a letter to appellant's attorney
requesting a status report.  Finally, on February 21, 1996, over
fifteen months after the judgment of conviction, appellant filed
the motion for belated appeal now before us. 
     In this case the notice of appeal was not timely given; in
addition, the record was tendered more than seven months after the
entry of judgment.  See Ark. R. App. P. 5(b).  It is an attorney's
duty to timely give a notice of appeal and file the record.  Patton
v. State, 320 Ark. 271, 895 S.W.2d 531 (1995).  The attorney did
neither in this case.  Further compounding those errors, after we
denied the rule on the clerk and directed counsel to file a motion
for a belated appeal, counsel waited another five months to file
this motion for belated appeal. 
     We grant the motion, and direct that a copy of this per curiam
be filed with the Committee on Professional Conduct.  See In re
Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).