Guinn v. State

Joe GUINN v. STATE of Arkansas

CR 96-209                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


1.   Appeal & error -- motion for rule on clerk -- clerk correctly
     refused to allow appellant to file record. -- A motion for a
     new trial must be filed within ten days after the entry of the
     judgment under Ark. R. Civ. P. 59; a notice of appeal must be
     taken within thirty days from the entry of the judgment under
     Ark. R. App. P. 4(a); where appellant's motion for a new trial
     was not filed within ten days and was of no effect, and where
     the notice of appeal was not filed within thirty days, the
     clerk correctly refused to allow appellant to file the record.

2.   Appeal & error -- motion for rule on clerk -- appellant's
     allegation that he was misled was not material to failure to
     timely file notice of appeal -- motion denied. -- Where
     appellant alleged that the record in his appeal was tendered
     late because he was misled by judicial district officials, the
     supreme court stated that the allegation was not material to
     the failure to timely file the notice of appeal and denied the
     motion for a rule on the clerk.


     Motion for Rule on the Clerk; denied.
     Stephen E. Kirk, for appellant.
     No response.

     Per Curiam.*ADVREP6*





JOE GUINN,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR96-209


MOTION FOR RULE ON CLERK,





MOTION DENIED.




                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996

                           Per Curiam.
     Joe Guinn asks for a rule on the clerk.  He alleges that we
should grant the rule because he was misled by a prosecuting
attorney and a member of a Drug Task Force, and, as a result, did
not timely perfect his appeal.  We deny the motion.
     According to movant's affidavit, the judgment of conviction
was entered on February 24, 1995, he filed a motion for a new trial
on April 7, 1995, and he filed a pro se Notice of Appeal on May 5,
1995.    
     A motion for a new trial must be filed within ten days after
the entry of the judgment, Ark. R. Civ. P. 59, and a notice of
appeal must be taken within thirty days from the entry of the
judgment, Ark. R. App. P. 4(a).  Here, the motion for a new trial
was not filed within ten days and is of no effect, and the notice
of appeal was not filed within thirty days.  Thus, on the surface,
the clerk correctly refused to allow appellant to file the record
in this case.
     Movant alleges, however, that the record was tendered late
because he was misled by judicial district officials.  However, the
allegation is not material to the failure to timely file the notice
of appeal.  He alleges that he was misled "[s]oon after filing my
Notice of Appeal."  Consequently, even if he were misled, it
occurred after he filed his notice of appeal; therefore, it had
nothing to do with the untimely filing of his notice of appeal.  We
deny the motion for a rule on the clerk.