Duncan v. State

Supreme Court of Arkansas

Duncan v. State

724 S.W.2d 179, 291 Ark. 314, 1987 Ark. LEXIS 1958

DecidedFebruary 23, 1987

StatusPublished

This text of 724 S.W.2d 179 (Duncan v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duncan v. State, 724 S.W.2d 179, 291 Ark. 314, 1987 Ark. LEXIS 1958 (Ark. 1987).

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Opinion

Per Curiam.

Appellant has filed a motion for rule on the clerk wherein his attorney admits, because of oversight, he failed to tender the record within the seven-month limit required under Rule 5 of the Arkansas Rules of Appellate Procedure. While we normally grant such motion upon confession-of-error by the attorney, the appellant’s motion, with affidavit attached, reflects that further, substantial delay in filing the record was due to counsel’s apparent negotiations with the prosecuting attorney in efforts to obtain relief from the conviction and/or penalty imposed below. If he had successfully obtained that relief, an appeal would have been unnecessary.

Clearly, such negotiations pose no justification for delay in pursuing a proper appeal, so we remand this cause to the trial court for a hearing to determine if a willful or intentional violation of the appellate rules has occurred by the appellant, if the occurrence is one of ineffective assistance of counsel, or if there is some other good and justifiable cause for the delay. Accordingly, the court withholds granting appellant’s motion until the trial court has conducted its hearing and has transmitted and certified its findings to this court.

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Per Curiam.

Appellant has filed a motion for rule on the clerk wherein his attorney admits, because of oversight, he failed to tender the record within the seven-month limit required under Rule 5 of the Arkansas Rules of Appellate Procedure. While we normally grant such motion upon confession-of-error by the attorney, the appellant’s motion, with affidavit attached, reflects that further, substantial delay in filing the record was due to counsel’s apparent negotiations with the prosecuting attorney in efforts to obtain relief from the conviction and/or penalty imposed below. If he had successfully obtained that relief, an appeal would have been unnecessary.

Clearly, such negotiations pose no justification for delay in pursuing a proper appeal, so we remand this cause to the trial court for a hearing to determine if a willful or intentional violation of the appellate rules has occurred by the appellant, if the occurrence is one of ineffective assistance of counsel, or if there is some other good and justifiable cause for the delay. Accordingly, the court withholds granting appellant’s motion until the trial court has conducted its hearing and has transmitted and certified its findings to this court.

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Bluebook (online)

724 S.W.2d 179, 291 Ark. 314, 1987 Ark. LEXIS 1958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-state-ark-1987.