Perry M. Guynn v. State of Arkansas

Perry GUYNN v. STATE of Arkansas

CR 98-278                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 26, 1998


Motions -- belated appeal -- attorney failed to admit fault -- 
     motion denied. -- The supreme court has held that a motion for
     belated appeal will be granted when the attorney admits that
     the notice of appeal was untimely filed due to an error on his
     part; here, the attorney did not admit fault, and a statement
     that it was someone else's fault or no one's fault will not
     suffice; appellant's motion for belated appeal was denied.  


     Motion for Leave to File Belated Appeal denied.
     Jack R. Kearney, for appellant.
     No response.

     Per Curiam.
     Appellant was convicted on August 13, 1997, of possession of
a controlled substance with intent to deliver, possession of drug
paraphernalia, and manufacture of a controlled substance.  He filed
a notice of appeal on September 4, 1997, but the court's judgment
and commitment order was not entered until October 6, 1997.  On
November 11, 1997, the Pulaski County Circuit Court granted the
appellant an extension to file the record on or before March 3,
1998, and the record was tendered on March 2, 1998.  Obviously,
because the notice of appeal was filed prematurely, any extension
to file the record was improper. 
     The appellant has filed a motion for belated appeal to compel
the clerk's office to accept the record.  In his motion, appellant
states the reason the record was tendered late is that the
"defendant and counsel were unaware that their notice of appeal and
designation of record had preceded the filing of the judgment and
commitment order."   
     This court has held that we will grant a motion for belated
appeal when the attorney admits that the notice of appeal was
untimely filed due to an error on his part.  See In Re:  Belated
Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).  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 the untimely filing of 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.