Steven Lee Smith v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR0812
Opinion Delivered January 24, 2008
STEVEN LEE SMITH,
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS
APPELLEE,
GRANTED.
PER CURIAM
Appellant Steven Lee Smith, by and through his attorney, Scott A. Ellington, has filed
a motion for rule on clerk to file his record and have his appeal docketed. Smith was
convicted of fleeing, seconddegree battery, two counts of aggravated assault, and leaving
the scene of an accident with personal injury. A judgment and commitment order reflecting
his convictions was entered on May 24, 2007, and an amended judgment and commitment
order was entered on June 5, 2007.
Mr. Ellison filed a notice of appeal on June 20, 2007, designating the May 24, 2007,
order as the order appealed from. On September 13, 2007, the time for filing the record on
appeal was extended from September 18, 2007, until November 19, 2007, due to the court
reporter’s request for additional time to prepare the record. After discussing the matter with
the court reporter, Mr. Ellison determined that the court reporter would need the full seven
months from the date of the judgment in which to complete the transcript. Accordingly, Mr.
CR0812
Ellison obtained an additional order from the trial court on September 13, 2007, extending
the time for filing the record until January 3, 2008, a date that fell within seven months from
the judgment entered on June 5, 2007. See Ark. R. App. P.—Civ. 5(b)(2) (2007).
Mr. Ellison attempted to lodge the transcript with our clerk’s office on January 3,
2008, but the clerk’s office rejected it, saying that the trial court was without jurisdiction to
extend the time for the filing of the record beyond December 24, 2007, or seven months from
the date of the entry of the first judgment and commitment order. Mr. Ellison therefore filed
the instant motion for rule on clerk on January 3, 2008, arguing that Rule 5(b)(2) permits the
extension of time for lodging the record on appeal to be calculated form the latest date of
entry of a judgment and commitment order. However, he cites no authority in support of this
argument.
In the alternative, Mr. Ellison accepts responsibility for miscalculating the time to file
the record. This court clarified its treatment of motions for rule on clerk and motions for
belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said
that there are only two possible reasons for an appeal not being timely perfected: either the
party or attorney filing the appeal is at fault, or, there is “good reason.” McDonald v. State,
356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
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not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Ellison has candidly admitted fault.
The motion is, therefore, granted. A copy of this opinion will be forwarded to the
Committee on Professional Conduct.
Motion granted.
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