Giacona v. State

Judith Rogers, Judge.

In a jury trial, the appellant, Frank Giacona, was convicted of manslaughter, a violation of Ark. Code Ann. § 5-10-104(a)(3) (1987),and was sentenced toatermoffive years in prison. On appeal, appellant contends that the trial court erred in denying his motion for a new trial in which he alleged ineffective assistance of counsel. Because we find that appellant’s notice of appeal was untimely, we dismiss the appeal.

The trial court entered its judgment and commitment order on July 13, 1989. A motion for a new trial on grounds of ineffective assistance of counsel was filed on August 10, 1989. However, the trial court struck the motion from the record by order of August 29, 1989, for the reason that the attorney who had presented the motion had not been properly substituted as appellant’s counsel. Appellant then sought a writ of mandamus before the supreme court. On September 15, 1989, the supreme court issued its mandate denying the writ without prejudice, giving appellant leave to petition the trial court to reconsider his motion for a new trial. On September 22, 1989, the trial court allowed the substitution of counsel, and on September 28,1989, the trial court entered an order reinstating appellant’s motion for a new trial. The trial court entertained appellant’s motion at a hearing held on October 23, 1989. The court entered an order denying appellant’s motion on April 10, 1991; appellant’s notice of appeal was filed on April 26, 1991.

Rule 4(c) of the Arkansas Rules of Appellate Procedure provides that when post-trial motions are filed, the time for appeal runs from the entry of the order granting or denying the order provided, “that if the trial court neither grants nor denies the motion within thirty days of its filing, the motion will be deemed denied as of the 30th day.” The rule also provides that a notice of appeal must be filed in thirty days from the entry of the order disposing of the motion or, in the event that the motion is deemed denied after thirty days, a notice of appeal must be filed in thirty days from that denial. Ark. R. App. P. 4(d).

In recent weeks, the State submitted motions to dismiss the criminal appeals of Clay v. State, CACR92-547, and Stuart v. State, CACR92-533. These motions were based on the contention that the notices of appeals had not been timely filed from the denial of the appellants’ post-trial motions for a new trial. Rule 4 of the Rules of Appellate Procedure was cited by the State as authority for dismissal. We certified these motions pursuant to Rule 29(1 )(c) of the Rules of the Supreme Court and Court of Appeals, noting an apparent conflict between Rule 4 and Rules 36.9 and 36.22 of the Rules of Criminal Procedure. On September 21, 1992, the supreme court granted the State’s motions to dismiss in both cases.

844 S.W.2d 381 John Wesley Hall, Jr., for appellant. Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.

In this case, pursuant to Rule 4(c), appellant’s motion for a new trial was deemed denied on October 30,1989¹, thirty days after the reinstatement of appellant’s motion for a new trial. Under Rule 4(d), appellant had thirty days from that date in which to file a notice of appeal. As it happens, appellant’s notice of appeal was not filed until April 26, 1991, some eighteen months later. Consequently, the notice of appeal was untimely. The timely filing of a notice of appeal is, and always has been, jurisdictional. Larue v. Larue, 268 Ark. 86, 593 S.W.2d 185 (1980). Additionally, whether the question is raised by the parties or not, it is not only the power, but the duty, of a court to determine whether it has jurisdiction of the subject matter. Hawkins v. State Farm Fire & Casualty Co., 302 Ark. 582, 792 S.W.2d 307 (1990). We dismiss the appeal without prejudice for appellant to petition the supreme court for permission to file a belated appeal.

Dismissed.

Cooper, and Jennings, JJ., agree.

1 The thirty-day period expired on Saturday, September 28, 1989. According to Rule 9 of the Rules of Appellate Procedure, the period was extended to Monday, October 30.