James E. Horvath v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR 071282
Opinion Delivered JANUARY 17, 2008
JAMES E. HORVATH,
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
REMANDED.
PER CURIAM
Appellant James Horvath filed a motion for rule on clerk seeking an order of this court
directing the Arkansas Supreme Court Clerk to accept his record for filing. Appellant
tendered the record on December 11, 2007, under an extension of time granted by the circuit
court on August 13, 2007. The clerk refused to file the record because the extension order
did not comply with Ark. R. App. P.–Civ. 5(b)(1).
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the
determination of the timeliness of a record on appeal. See Harrison v. State, 369 Ark. 518,
___ S.W.3d ___ (2007) (per curiam). Rule 5(b)(1) provides:
(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 prescribed by subdivision (a) of this rule or a prior
extension order, 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;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the
stenographically reported material from the court reporter and made any
financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include
the stenographically reported material in the record on appeal.
This court has made it very clear that we expect strict compliance with the requirements of
Rule 5(b), and that we do not view the granting of an extension as a mere formality. See
Harrison, 369 Ark. 518, ___ S.W.3d ___. The order of extension in this case makes no
reference to the findings of the circuit court as required by Rule 5(b)(1). Accordingly, we
remand this matter to the circuit judge for compliance with Rule 5(b)(1).
Furthermore, we take this opportunity to note that the record does not indicate that
a motion for extension of time was filed with the circuit court. As we recently pointed out,
upon remand for compliance with Rule 5(b)(1):
the circuit court shall determine whether the rule was complied with at the
time the original motion for extension of time was filed and granted. The
circuit court should not permit the parties the opportunity to correct any
deficiencies, but instead should make the findings required by the rule as if
they were being made at the time of the original motion. Should the
requirements not have been met at the time of the initial motion for extension
and order, the circuit court’s order upon remand should so reflect and be
returned to this court. We again emphasize that we do not view the granting
of an extension of time as a mere formality. See White v. State, 366 Ark. 295,
234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314
(2006).
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CR 071282
McGahey v. State, ___ Ark. ___, ___, ___ S.W.3d ___, ___ (Dec. 13, 2007) (per curiam).
Remanded.
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CR 071282
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