Plugge v. State

Per Curiam.

Appellant, Dan W. Plugge, through his counsel, has petitioned for a rule on the clerk to file the record on appeal from his conviction of driving while intoxicated, a misdemeanor.

Appellant’s counsel asserts that after entry of the judgment he ordered the transcript promptly and paid the requested deposit of $100. Counsel further informs us that a number of letters were sent by him to appellant at a Florida address informing him of the progress of the appeal and urging the timely payment of the costs of the appeal. The letters went unanswered although counsel reports that appellant now claims the letters were never received. After the time for appeal had expired counsel made a refund to appellant and informed him that the time for appeal had run. Counsel states that appellant now insists the appeal be prosecuted.

While the petition contains an assertion that counsel assumes responsibility for the failure to file the record, which would bring the case within the ambit of our Per Curiam in In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979), we find that the allegations of the petition reflect that the failure was not the fault of counsel, but was entirely attributable to the appellant. That being so, our Per Curiam has no application and the motion for a rule on the clerk is denied.

Purtle, J., concurs.