Clemons v. State
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Cite as 2009 Ark. 583
SUPREME COURT OF ARKANSAS
No.
JAMES E. CLEMONS,
CR 09-1182
Opinion Delivered November 19, 2009
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Appellant, James Clemons, by and through his attorney, Rickey Hicks, seeks a motion
for rule on clerk. The State has not filed a response.
Appellant was convicted of capital murder in the Union County Circuit Court on
March 26, 2009, and sentenced to life imprisonment without parole. A timely notice of
appeal was filed on April, 17, 2009. Pursuant to an order of the circuit court, the time for
filing the record was extended to October 26, 2009. The record was not tendered to this
court, however, until October 27, 2009.
This court clarified its treatment of motions for rule on clerk 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.” Id. 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
Cite as 2009 Ark. 583
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
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id. at 116, 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., 356
Ark. 106, 146 S.W.3d 883.
Because Mr. Hicks admits that he failed to timely file the record, we grant the motion
for rule on clerk. A copy of this opinion will be forwarded to the Arkansas Supreme Court
Committee on Professional Conduct.
Motion for rule on clerk granted.
-2-
CR 09-1182
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