Billie Baxter v. State of Arkansas

Billie BAXTER v. STATE of Arkansas

Supreme Court of Arkansas
Opinion delivered September 9, 2004

Appeal & Error - Motion for Rule on Clerk - Good Cause for Granting. - An admission by an attorney for a criminal defendant that the record was tendered late due to a mistake on his part is good cause to grant a motion for rule on the clerk.

Motion for Rule on Clerk; granted.

Alvin Schay, for appellant.

No response.

Per Curiam. Appellant Billie Baxter, by and through his attorney, Alvin Schay, has filed a motion for belated appeal. Because the motion actually asks this court for permission to belatedly lodge the record on appeal, we treat the motion as one for rule on the clerk. The tendered record reflects that Appellant was convicted of driving while intoxicated, fourth offense, following a bench trial on February 23, 2004. He filed a notice of appeal on March 22, 2004. The judgment and commitment order, however, was not filed until April 8, 2004. Under Ark. R. App. P.-Civ. 4(a), his notice of appeal is thus treated as filed on April 9, 2004. Accordingly, the record on appeal was due to be filed in this court within ninety days from April 9, 2004, on July 8, 2004. See Ark. R. App. P.-Civ. 5(a). The record was not tendered until July 13, 2004.

Appellant's counsel, Mr. Schay, has submitted an affidavit explaining the delay in filing the record. Counsel also avers in the motion that if this court determines that he was derelict in failing to timely file the record, then he admits that the late filing was his fault.

We accept counsel's admission of fault and find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Jackson v. State, 351 Ark. 212, 89 S.W.3d 930 (2002) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804(1986) (per curiam). The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

It is so ordered.