Mark Anthony Holsombach v. State of Arkansas
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Mark Anthony HOLSOMBACH v. STATE of Arkansas
CR 06550
___ S.W.3d ___
Supreme Court of Arkansas
Opinion delivered June 22, 2006
MOTIONS – MOTION FOR RULE ON CLERK – FAILURE TO COMPLY WITH ARK. R. APP.
P.–CIV. 5(B). – Where it appeared that both parties were given notice of the extension
in which to file the record, but the request for extension was not properly brought by
the appellant, where there was no hearing held on the requested extension, and where
the order granting the extension made no reference to any findings of the circuit court,
the order of extension entered by the trial court was void; however, because counsel
for the appellant accepted responsibility for failing to comply with the requirements
of Ark. R. App. P.–Civ. 5 and for failing to timely file the record, the supreme court
granted appellant’s motion for rule on clerk.
Motion for Rule on Clerk; granted.
Taylor Law Firm, by: Stevan E. Vowell, for appellant.
No response.
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PER CURIAM 10
HOLSOMBACH v. STATE
Cite as 36_ Ark. ___ (2006)
Page 2
PER CURIAM. Appellant Mark Anthony Holsombach, by and through his attorney
Stevan E. Vowell, has filed a motion for rule on clerk. The record reflects that Appellant
timely filed his notice of appeal on November 28, 2005, making his record on appeal due on
or before February 26, 2006. On February 6, 2006, the Van Buren Circuit Court entered an
order extending the time for filing the transcript to May 15, 2006. When Appellant
attempted to tender the record on May 15, 2006, the clerk of this court refused to accept it
because the order of extension entered on February 6 did not comply with the requirements
of Ark. R. App. P.– Civ. 5(b). Appellant subsequently filed the present motion.
Rule 5(b)(1)(C) states in part:
(b) Extension of time.
(1) If any party has designated stenographically reported material for
inclusion in the record on appeal, the circuit court, by order entered before
expiration of the period . . . may extend the time for filing the record only if
it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the
requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion,
either at a hearing or by responding in writing[.]
This court has made it very clear that we expect strict compliance with the
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PER CURIAM 10
HOLSOMBACH v. STATE
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Page 3
requirements of Rule 5(b), and that we do not view the granting of an extension as a mere
formality. See, e.g., Hairgrove v. Oden, 365 Ark. 53, ___ S.W.3d ___ (2006) (per curiam);
Hickson v. Arkansas Dep’t of Human Servs., 357 Ark. 577, 182 S.W.3d 483 (2004) (per
curiam); Rose Care, Inc. v. Jones, 355 Ark. 682, 144 S.W.3d 738 (2004) (per curiam).
Thus, before a trial court may enter an order of extension: (1) the appellant must request the
extension; (2) notice must be given to the appellee; (3) a hearing must be held on the request;
(4) the trial court must make findings to support an extension. See Murphy v. Dumas, 343
Ark. 608, 36 S.W.3d 351 (2001) (per curiam).
Here, though it appears that both parties were given notice of the extension, the
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request for the extension was not properly brought by Appellant. There was no hearing held
on the requested extension, and the order granting the extension makes no reference to any
findings of the circuit court. As a result, the order of extension entered by the trial court was
void, but because counsel for Appellant has accepted responsibility for failing to comply
with the requirements of Rule 5 and timely filing the record in the instant case, we grant the
motion for rule on clerk. A copy of this per curiam will be forwarded to the Committee on
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The court reporter filed a “motion” requesting an extension of time to prepare the
transcript and stated therein that both the prosecutor and counsel for Appellant had agreed
to such an extension.
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PER CURIAM 10
HOLSOMBACH v. STATE
Cite as 36_ Ark. ___ (2006)
Professional Conduct.
Motion granted.
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PER CURIAM 10
Page 4
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