Henry Lee Brazil v. State of Arkansas

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Henry Lee BRAZIL v. STATE of Arkansas

CR 98-109                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Appeal & error -- motion for rule on clerk -- when granted. -- The
     supreme court will grant a motion for rule on the clerk, which
     will be treated as a motion for belated appeal, when the
     attorney admits that the notice of appeal was not timely filed
     due to an error on his part.

2.   Appeal & error -- motion for rule on clerk denied -- attorney did not
     admit fault. -- Where the record was not timely filed and the
     attorney did not admit fault on his part, the supreme court
     denied the motion for rule on the clerk; a statement that it
     was someone else's fault or no one's fault will not suffice.


     Motion for Rule on the Clerk; denied.
     Robert N. Jeffrey, for appellant.
     No response.

     Per Curiam.  
     Henry Lee Brazil, by his attorney, has filed a motion for rule
on the clerk.  The motion states that the record was not timely
filed and that it was no fault of the appellant.
     Appellant filed a notice of appeal and designation of record
on October 17, 1997, following the entry on September 25, 1997 of
terms and conditions of suspended imposition of sentence. 
Subsequently, on December 12, 1997, the Dallas County Circuit Court
entered a judgment convicting appellant of burglary and theft of
property.  Appellant did not timely file a notice of appeal after
entry of the judgment.  Appellant's attorney states that the
record, as certified by the Dallas County Circuit Clerk on December
23, 1997, did not contain the judgment and commitment order filed
on December 12, 1997.  Appellant's attorney further suggests that
if the Dallas County Circuit Clerk had complied with Administrative
Order No. 8, Section III.a, as amended on December 4, 1997, and
forwarded a copy of the judgment and commitment order to
appellant's counsel of record, he could have filed a timely notice
of appeal.
     This court has held that we will grant a motion for rule on
the clerk, which we will treat as a motion for belated appeal, when
the attorney admits that the notice of appeal was not timely filed
due to an error on his part.  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.  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, appellant's
motion 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, and upon filing same, the motion for belated appeal will be
granted and a copy of the opinion will be forwarded to the
Committee on Professional Conduct.  See Warren v. State, 329 Ark.
637, 950 S.W.2d 462 (1997).
     The present motion for rule on the clerk is denied.