Daniels v. State
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SUPREME COURT OF ARKANSAS
No.
CR09-370
Opinion Delivered April
ANTONIO DANIELS,
30, 2009
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
REMANDED.
PER CURIAM
Antonio Daniels, by and through his attorney Dale West, has filed a motion for rule
on clerk. The clerk of this court refused to file the record in this case, concluding that the
order extending the time within which to file the record failed to comply with Arkansas Rule
of Appellate Procedure–Civil 5 (b)(1)(A) and (D). However, Arkansas Rule of Appellate
Procedure–Criminal 4 was amended and made effective October 1, 2008. See In re Rules of
Supreme Court and Court of Appeals, Rule 4-3; Rules of Appellate Procedure – Criminal, Rule 4;
and Rules of Criminal Procedure, Rule 24.3, 374 Ark. App’x ___ (Sept. 18, 2008). Arkansas
Rule of Appellate Procedure–Criminal 4, rather than Arkansas Rule of Appellate
Procedure–Civil 5, now provides the procedure to be followed in a criminal case when an
extension of time is sought within which to file the record.
In this case, the judgment and commitment order was filed on September 4, 2008.
The notice of appeal was timely filed on October 1, 2008. The record had to be filed within
ninety days of the date that the notice of appeal was filed, making the record due no later than
December 30, 2008. See Ark. R. App. P.–Crim. 4(b). However, on December 11, 2008,
the circuit court granted a motion for an extension of time under Rule 4 and entered an order
extending the date for filing the record. An extension is permitted where the requirements
of Rule 4 are met. Rule 4(c)(1) provides in pertinent part as follows:
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 (b) of this rule or by a prior extension
order, may extend the time for filing the record. A motion by the defendant
for an extension of time to file the record shall explain the reasons for the
requested extension, and a copy of the motion shall be served on the
prosecuting attorney. The circuit court may enter an order granting the
extension if the circuit court finds that all parties consent to the extension and
that an extension is necessary for the court reporter to include the
stenographically reported material in the record on appeal. If the prosecuting
attorney does not file a written objection to the extension within ten (10) days
after being served a copy of the extension motion, the prosecuting attorney
shall be deemed to have consented to the extension, and the circuit court may
so find.
Rule 4(c)(1)(b) provides that a copy of the motion shall be served on the prosecuting
attorney. A copy of the motion was served on the prosecuting attorney on December 2, 2008.
The circuit court’s order granting the extension of time under Rule 4 was entered on
December 11, 2008, does not state that all parties consent to the extension and it does not
state the length of time the extension is granted.
W e view this matter under Rule 4 as we do a violation of Arkansas Rule of Appellate
Procedure–Civil 5. Upon a remand for compliance with Rule 4(c)(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
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CR09-370
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.
Because the order of extension in this case makes no reference to each of the findings
of the circuit court required by the rule, and because there must be strict compliance with the
rule, we remand the matter to the circuit court for compliance with Rule 4(c)(1).
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CR09-370
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