McDonald v. State

124 S.W.3d 438 (2003)

Randolph McDONALD,
v.
STATE of Arkansas.

No. CR 03-957.

Supreme Court of Arkansas.

September 11, 2003. Order Denying Reconsideration November 6, 2003.

Laura Cunningham, Benton County Public Defender, for appellant.

No response.

MOTION FOR RULE ON THE CLERK.

PER CURIAM.

Randolph McDonald, by attorney Laura Cunningham, has filed a motion for rule on the clerk. The clerk refused to file McDonald's appeal because the notice of appeal was untimely. McDonald seeks an order that the clerk be instructed to file the appeal because the clerk erred in misapprehending the facts or misinterpreting the law. We deny the motion.

McDonald states that he is proceeding under Ark. R.Crim. P. 24.3(b), which permits entry of a conditional plea of guilty and appeal from the judgment to obtain appellate review of an adverse determination on a pretrial motion to suppress evidence. Ark. R.Crim. P. 24.3(b)(2003). A Plea Agreement and Order including the conditional plea was entered April 14, 2003; however, McDonald has not appealed from the April 14, 2003, judgment as provided under Ark. R.Crim. P. 24.3(b). Instead, McDonald attempts to appeal from a November 4, 2002, order denying his motion to suppress. McDonald erred in failing to file a notice of appeal from the June 4, 2003, judgment.

This court will grant a motion for rule on the clerk, which we will treat as a motion for a belated appeal, when the attorney admits that the failure to file a timely notice of appeal was due to an error on her part. See, e.g., Slack v. State, 338 Ark. 643, 999 S.W.2d 668 (1999). Here, the attorney does not admit fault. We have held that a statement that it was someone else's fault or no one's fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant's motion must be denied. The appellant's attorney shall file within thirty days from the date of this per curiam opinion a motion and affidavit showing good reason as required under Ark. R.App. P.-Crim. 2(e), and accepting full responsibility for not timely filing the notice of appeal. Upon filing, the motion will be granted.

Motion denied.

THORNTON, J., not participating.

Attorney Laura Cunningham represents Randolph McDonald who was convicted of possession of a controlled substance on a conditional plea under Ark. R.Crim. P. 24.3(b)(2002). Rule 24.3(b) provides that a criminal defendant who makes a conditional plea may appeal from the judgment for review of the adverse determination on the pretrial motion to suppress evidence. As indicated in our September 11, 2003, per curiam, McDonald failed to appeal from the June 4, 2003, judgment. Instead, McDonald attempted to appeal from the November 4, 2002, denial of the motion to suppress. Naturally, when the clerk's office received a notice of appeal on May 7, 2003, attempting to appeal an order from the previous November, the appeal was rejected as untimely. Rule 24.3(b) requires an appeal from the judgment, not the order denying the motion to suppress.

Had the notice of appeal listed the judgment and commitment order rather than the denial of the motion to suppress, it would have been timely even though filed early. Ark. R.App. P.—Crim. 2(b)(2003). The judgment in this case was not entered until June 4, 2003.

In the September 11, 2003, per curiam this court notified Cunningham that she was at fault for failing to file the notice of appeal within the time required under the rule and ordered her to file a motion and affidavit as required under Ark. R.App. P.—Crim. 2(e)(2003), accepting full responsibility for her error in failing to file an adequate notice of appeal. In response, Cunningham has not filed the motion as ordered; but rather she has filed a motion for reconsideration stating that "she declines to accept fault and will not file an admission of fault...." (emphasis in the original.) Cunningham asserts in her motion for reconsideration (1) that her notice of appeal was in compliance in that the only thing that could be appealed under Rule 24.3(b) was the denial of the suppression order, (2) that a court ordered confession of misconduct is unconstitutional, (3) that a court ordered confession of misconduct creates a conflict between her and her client, and (4) that a court ordered confession of misconduct impermissibly compels her to give up one right in order to exercise another. Cunningham was required under the rules to file a notice of appeal within thirty days. She did not do so. The notice she attempted to file was defective and of no effect. The motion for reconsideration is denied. Cunningham is ordered to appear before this court on November 20, 2003, at 9:00 a.m., to show cause why she should not be held in contempt for failure to comply with this court's order set out in the September 11, 2003, per curiam.

BROWN, J., concurs.

ROBERT BROWN, Justice, concurring.

While I do not disagree with this per curiam order, it is important not to delay the appellant's appeal any further. For that reason, I would remove Ms. Cunningham as attorney of record in this case and appoint new counsel so that the appeal is stalled no longer. For that reason, I concur.