Banks v. State

2009 Ark. 401, 368 S.W.3d 45, 2009 Ark. LEXIS 419

• Court: Supreme Court of Arkansas
• Decided: September 10, 2009
• Docket: No. CR 09-838
• Status: Published

Opinion

MOTION FOR RULE ON CLERK

PER CURIAM.

[[Appellant Kevin Banks, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Lea Ellen Fowler, states in the motion that she misinterpreted the Order extending time to file the record.

This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, | ¡where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.

In accordance with McDonald v. State, supra, Ms. Fowler has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.