Tucker v. State

Per Curiam.

Robert Earl Tucker has filed a motion for rule on the Clerk contending it was error for the Clerk to refuse to docket his appeal from a burglary conviction. The Clerk properly declined the appeal because Tucker’s notice of appeal was untimely. If we were simply to deny the motion, Tucker’s counsel could then seek a belated appeal. Rather than require that additional procedure, we choose to treat the motion now before us as one for belated appeal and to grant it.

Tucker was convicted of burglary and sentenced as an habitual offender on July 21, 1992. He filed his notice of appeal July 23,1992. Judgment was not entered, however, until July 24, 1992. Tucker filed a second notice of appeal on September 8, 1992. The Clerk correctly refused to lodge the transcript with this Court. The first notice was ineffective because it was premature. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). The second notice was more than 30 days after entry of the judgment and thus too late. Ark. R. App. P. 4(a).

Our decision in the Kelly case overruled the holding in State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1992), which was to the effect that a notice of appeal filed prior to entry of judgment is to be treated as being filed when judgment is entered.

If this were a case in which the attorney had, by inadvertence, failed to file a timely notice of appeal, we would grant the rule and forward the attorney’s name to the Committee on Professional Conduct under the authority of Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). This is not such a case.

In Harkness v. State, supra, we pointed out that if we did not grant a belated appeal in a case where a lawyer had inadvertently missed the 90-day deadline for docketing the record in a criminal case with this Court, the defendant would be able to obtain a new trial or belated appeal on the basis of ineffective assistance of counsel. In civil cases we routinely deny such motions, as there is no Sixth Amendment consideration.

In a per curiam order subsequent to the Harkness decision we outlined the procedure to govern in criminal cases when the appeal was untimely'without good reason. We said we would take the practical measure of allowing the appeal to be filed and would forward the name of the inadvertent counsel to the Committee on Professional Conduct. Here is the last paragraph of that per curiam order:

The controlling rule provides: “The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit." (Italics supplied.) Rules of Criminal Procedure, Rule 36.9. The purpose of the exception, to take care of hardship cases, is being disregarded, in that counsel tender out-of-time transcripts without a good reason for the delay. In order to put the responsibility where it belongs, on the shoulders of the lawyer who is at fault, hereafter when no good cause for the error is shown, the court will publish a per curiam order allowing the appeal, giving the name of the lawyer, and stating why no good reason has been shown for the omission. A copy of the order will be sent to the court’s Committee on Professional Conduct, to be kept in its files for the Committee’s information if any complaint of any kind should later be filed against that lawyer.

In this case there is, as Ark. R. Crim. P. 36.9 requires, a “good reason” for the failure to file the appeal. There has been some justifiable confusion about whether our decision in the Kelly case, which was civil in nature, applies to criminal appeals as well. This is not a case of inadvertence to which the Harkness decision and our explanatory per curiam order apply. Treating the motion as one for belated appeal pursuant to Rule 36.9, we find good reason to grant the motion.

Motion for belated appeal granted.

Holt, C.J., and Brown, J., dissent.