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Harkness v. State

572 S.W.2d 835, 264 Ark. 561, 1978 Ark. LEXIS 2152
CourtSupreme Court of Arkansas
DecidedNovember 13, 1978
DocketCR 78-107
StatusPublished
Cited by52 cases

This text of 572 S.W.2d 835 (Harkness 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
Harkness v. State, 572 S.W.2d 835, 264 Ark. 561, 1978 Ark. LEXIS 2152 (Ark. 1978).

Opinions

Conley Byrd, Justice.

This is a motion by petitioner Alfred D. Harkness for a rule on the Clerk to file a record tendered two days late — i.e. on the 92nd day. Attached to the motion is the affidavit of Frank C. Elcan II, the Deputy Public Defender for Crittenden County from which it appears that he, as attorney for Petitioner, had inadvertently miscalculated the 90 day limit for filing appeals in this Court. The authorities Blanchard v. Brewer, 429 F. 2d 89 (8th Cir. 1970), hold that the denial of an appeal for such causes amounts to a denial of a constitutional right, on the theory that such a miscalculation, although honestly made, amounts to ineffective assistance of counsel.

The State has not controverted the affidavit of Frank C. Elcan II. Consequently, we must accept the assertions in the affidavit as true for purpose of hearing this motion.

Since to deny the Motion for a Rule on the Clerk would furnish grounds for Petitioner to obtain a new trial in a post-conviction proceeding, we as a pragmatical matter must grant the motion to docket the record as a belated appeal.

Rule granted.

Hickman, J., dissents.

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Bluebook (online)
572 S.W.2d 835, 264 Ark. 561, 1978 Ark. LEXIS 2152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkness-v-state-ark-1978.