Excel Warren v. State of Arkansas

Excel WARREN v. STATE of Arkansas

CR 97-166                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 10, 1997


1.   Appeal & error -- motion for rule on clerk treated as belated-appeal
     motion and denied. -- Treating petitioner's motion for rule on
     the clerk as one for a belated appeal, the supreme court
     denied the motion, noting, however, that it would grant it
     upon counsel's admission of error in failing to perfect the
     appeal.

2.   Appeal & error -- attorney must accept responsibility for tendering record
     late. -- Here, the attorney did not admit fault on his part for
     tendering the record late but instead implied fault on behalf
     of the State (or perhaps some unnamed third party); a
     statement that it was someone else's fault or no one's fault
     will not suffice.


     Motion for Rule on the Clerk; Motion for Dismissal; denied.
     Zimmery Crutcher, for appellant.
     No response.

     Per Curiam. 
     Petitioner, Excel Warren, by his attorney, Zimmery Crutcher,
has filed a motion for rule on the clerk or alternatively a motion
for dismissal.  Appellant received a guilty verdict on July 3,
1996, and filed a notice of appeal on July 18, 1996.  However,
judgment was not entered until December 18, 1996.  The clerk
refused to accept the record in this case on January 16, 1997,
because the judgment was filed after the notice of appeal.  Under
our rules the notice of appeal was of no effect.  Ark. R. App. P.
4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).
     We will treat petitioner's motion as one for a belated appeal
and will grant the motion upon counsel's admission of error in
failing to perfect the appeal.  See e.g., Tarry v. State, 288 Ark.
172, 702 S.W.2d 804 (1986).  Here, the attorney does not admit
fault on his part, but instead implies fault on behalf of the State
(or perhaps some unnamed third party).  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). 
Therefore, the motions must be denied.
     The appellant's attorney 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.  Upon filing same, the motion will be granted and a copy of
the opinion will be forwarded to the Committee on Professional
Conduct.