Eric Dewayne Martin v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR 08-767
Opinion Delivered September 4, 2008
ERIC D. MARTIN,
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
MOTION TREATED AS BELATED
APPEAL; GRANTED.
PER CURIAM
1.
MOTION FOR BELATED APPEAL – GRANTED WHERE APPELLANT’S ATTORNEY CANDIDLY
ADMITTED FAULT.–
Appellant’s motion for rule on clerk was treated as motion for
belated appeal, and because appellant’s counsel candidly admitted that he did not file
the notice of appeal within thirty days of the entry of the judgment, the motion was
granted.
Motion for Rule on Clerk; motion treated as belated appeal; granted.
Phillip A. McGough, for appellant.
No response.
Appellant Eric D. Martin, by and through his attorney, Phillip A. McGough, has filed
a motion for rule on clerk. On December 23, 1997, Appellant pled guilty to two counts of
residential burglary, one count of theft of property, and one count of breaking or entering and
was sentenced to probation for a total of thirty-six years on all counts. By judgment and
commitment order entered February 20, 2008, Appellant’s probation was revoked, and he was
sentenced to a total of 432 months in the Arkansas Department of Correction. Appellant filed
a notice of appeal on May 5, 2008, from the judgment and commitment order entered
February 20, 2008. The record was tendered to the clerk of this court on June 26, 2008. The
supreme court clerk refused to file the record because the notice of appeal was filed more than
thirty days after the first judgment and commitment order was entered.
[1] Appellant’s counsel filed this motion for rule on clerk, candidly admitting therein
that he did not file the notice of appeal within thirty days of the entry of the judgment.
Where a motion for rule on clerk is filed in error, it will be treated as a motion for belated
appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Despite Appellant’s failure
to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to
consider his appeal when counsel has failed to follow appellate rules. Morris v. State, 373 Ark.
190, ___ S.W.3d ___ (2008) (per curiam) (citing Franklin v. State, 317 Ark. 42, 875 S.W.2d
836 (1994) (per curiam)). Consistent with our explanation of handling motions for rule on
clerk and belated appeals in McDonald, 356 Ark. 106, 146 S.W.3d 883, we consider this a
motion for belated appeal and direct the clerk of this court to accept the record and docket
the appeal. We forward this opinion to the Committee on Professional Conduct.
Motion treated as belated appeal; granted.
-2-
CR 08-767
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