DocketNumber： CR 07-887
Judges： Gunter
Filed Date： 10/4/2007
Status： Precedential
Modified Date： 11/2/2024
Supreme Court of Arkansas.
Grant C. DeProw, for appellant.
No response.
PER CURIAM.
Appellant Brian Robinson, by and through his attorney Grant C. DeProw, has filed a motion for rule on the clerk, which we will treat as a motion for belated appeal. While the circuit court granted a motion to extend time, the order on that motion makes no indication that all parties had the opportunity to be heard on the motion pursuant to Ark. R.App. P.-Civ. 5(b)(1)(C). The clerk refused to docket the record because the order granting an extension made no reference to an opportunity to be heard. DeProw now offers in lieu of that requirement an affidavit from the deputy prosecuting attorney stating that the State has no opposition to extending time for filing the record, and that had there been a formal hearing on the motion, the State would have had no objection to the extension. This court has made it very clear that strict compliance with Rule 5(b) is required. The granting of an extension is not a mere formality. The rule requires that the order indicate that all parties have had the opportunity to be heard on the motion. Here, the order does not comply with Rule 5(b)(1)(C). Accordingly, we remand this matter to the circuit court for compliance with Rule 5(b)(1)(C). See Jones v. State, 367 Ark. 324, 239 S.W.3d 483 (2006).
PER CURIAM.
Appellant Brian Robinson, by and through his attorney, has filed a motion for rule on clerk. The court treats these motions as Motion for Belated Appeal. His attorney, Grant DeProw, states in the motion that the record was tendered late due to a mistake on his part.
Because DeProw has admitted fault, this motion is granted pursuant to McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Committee on Professional Conduct.
GUNTER, J., concurs.
JIM GUNTER, Justice, concurring.
I agree with the disposition and write to call for reconsideration of Rule 5. Our stated purpose of Rule 5 was to eliminate unnecessary delay in the docketing of appeals. We also point out that the rule was expected to allow "lawsuits to proceed as expeditiously as possible." Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300. Rule 5 has done anything but accomplish this purpose.
While our Rule 5 was adopted as a civil measure, we have held that it applies to both civil and criminal cases. Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006). Rule 5(b)(1) provides in pertinent part:
(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:
*141 (C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
Id. We have made it clear that there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. McGahey v. State, 370 Ark. 525, 262 S.W.3d 141 (2007). However, in the past, we have routinely granted the motion for belated appeal after receiving an amended order reflecting that all parties had an opportunity to be heard. See, e.g., State v. Lalota, letter order granting rule on clerk, CACR06-821, Mar. 14, 2007; and Tobias v. Clark, letter order granting rule on clerk, CA07-16, Mar. 8, 2007.
In this case, appellant timely filed his notice of appeal. Although the record was timely tendered, our clerk refused to accept the record, because the circuit court's order granting appellant an extension of time to file the record made no reference to all parties having an opportunity to be heard. By per curiam order dated September 13, 2007, we remanded this case to the trial court for compliance with Rule 5(b)(1)(C). Now, counsel for appellant admits fault, and admits that he did not notify the State of his motion or request a hearing on the matter. Now that we have that information, we can proceed after denying the appellant a speedy disposition of his appeal, quite contrary to the purpose espoused in applying Rule 5.
Our court should not put itself into a position of raising issues on behalf of a party not objecting. Rule 5 should offer an avenue to allow the criminal appeal to proceed while the Court tends to its supervision of the trial court and the appellant's counsel. For these reasons, I concur.