Hicks v. State

Randolph George HICKS v. STATE of Arkansas

CR 96-482                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 20, 1996


1.   New trial -- motion filed before entry of judgment and
     commitment order was untimely and ineffective. -- Where
     appellant's counsel filed a motion for new trial before the
     judgment and commitment order was entered, the motion for new
     trial was untimely and ineffective.

2.   Appeal & error -- notice of appeal was ineffective. -- Where
     appellant's motion for new trial was ineffective and where the
     notice of appeal was filed more than thirty days after the
     judgment was entered, the notice of appeal was also of no
     effect.

3.   Appeal & error -- motion for rule on clerk -- denied because
     counsel did not admit responsibility for filing untimely
     notice of appeal. -- Where appellant's counsel did not admit
     responsibility for filing an untimely notice of appeal, the
     supreme court denied appellant's motion for rule on the clerk;
     a statement that the fault was someone else's or no one's will
     not suffice.


     Motion for Rule on the Clerk; denied.
     Wayne Emmons and Chandler Law Firm, by: Edward Witt Chandler,
for appellant.
     No response.

     Per Curiam.

Per Curiam 5-20-96  
*ADVREP*SC6*






RANDOLPH GEORGE HICKS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,


CR 96-482




MOTION FOR RULE ON THE CLERK





MOTION DENIED.









     Appellant, Randolph George Hicks, by his attorneys, has filed
a motion for rule on the clerk.  His attorneys, Wayne Emmons of
Hardy, Arkansas, and Edward Witt Chandler, who was admitted to
practice in Arkansas by comity pursuant to Rule XIV of the Rules
Governing Admission to the Bar, state by motion that they were
notified by the Clerk of this court that the record could not be
filed because the notice of appeal was filed late.  Appellant's
attorneys state by motion that they disagree that the notice of
appeal was late.  
     In a Baxter County jury trial held on December 4 and 5, 1995,
appellant, Randolph George Hicks, was convicted of two counts of
delivery of methamphetamine, one count of possession of
methamphetamine with intent to deliver, and one count of possession
of drug paraphernalia.  He was sentenced consecutively on each
count, resulting in a cumulative sentence of ninety-five years
imprisonment.  Appellant's counsel filed a motion for new trial on
December 11, 1995, but the motion was filed before the judgment and
commitment order was entered on December 14, 1995.  The motion for
new trial was therefore untimely and ineffective.  Webster v.
State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam).
Appellant's counsel amended the motion for new trial on
December 20, 1995, asserting additional grounds for the motion. 
The amended motion related back to the date of filing of the
original motion.  Oliver v. State, 322 Ark. 8, 907 S.W.2d 706
(1995).  The trial court did not rule on the motion for new trial. 
On January 19, 1996, appellant's counsel filed a notice of appeal
from the judgment "entered against him on December 5, 1995." 
Although appellant's jury trial concluded on December 5, 1995, the
judgment was not entered for purposes of appeal until it was filed
of record with the Baxter County Circuit Clerk on December 14,
1995.  Ark. R. App. P. 4(e) (1995).  Because the motion for new
trial was ineffective and because the notice of appeal was filed
more than thirty days after the judgment was entered, the notice of
appeal was also of no effect.  Webster, 320 Ark. 393, 896 S.W.2d 890.
     Because appellant's counsel have not admitted responsibility
for filing the notice of appeal untimely, we deny appellant's
motion.  See In re:  Belated Appeals in Criminal Cases, 265 Ark.
964 (1979) (per curiam).  This court has held that it will treat a
motion for rule on the clerk as a motion for belated appeal and
grant the motion when counsel admits that the notice of appeal was
not timely filed due to an error on his part.  See, e.g., Brown v.
State, 321 Ark. 282, 900 S.W.2d 954 (1995) (per curiam).  Here, the
attorneys do not admit fault.  Instead, they state by motion that
they witnessed the prosecutor hand the judgment to the circuit
clerk at the conclusion of the trial.  We have held that a
statement that it was someone else's fault or no one's fault will
not suffice.  Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986)
(per curiam).  Therefore, appellant's motion must be denied.     
     Appellant's attorneys shall file within thirty days from the
date of this per curiam a motion and affidavit in this case
accepting full responsibility for not timely filing the notice of
appeal and upon filing same, or if other good cause is shown, the
motion will be granted and a copy of the opinion will be forwarded
to the Committee on Professional Conduct.
     The present motion for rule on the clerk is denied.
     DUDLEY, J., not participating.