Smith v. State

Supreme Court of Arkansas

Smith v. State

898 S.W.2d 468, 320 Ark. 658, 1995 Ark. LEXIS 324

CourtSupreme Court of Arkansas

DecidedMay 30, 1995

DocketCA CR 94-687

StatusPublished

Cited by1 cases

This text of 898 S.W.2d 468 (Smith 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

Smith v. State, 898 S.W.2d 468, 320 Ark. 658, 1995 Ark. LEXIS 324 (Ark. 1995).

Pincite

Opinion

Per Curiam.

Appellant was convicted of two counts of aggravated assault and sentenced to six years imprisonment. He appealed. The Court of Appeals dismissed the appeal because no effective notice of appeal was filed. Smith v. State, 49 Ark. App. 73, 896 S.W.2d 450 (1995). Appellant’s attorney subsequently filed a motion styled “Motion For A Belated Appeal” and has stated it was his error that resulted in the failure to give an effective notice of appeal. He asks that, because of his error, we grant a belated appeal.

Under authority of Ark. R. Crim. P. Rule 36.9, we grant belated appeals because of attorneys’ errors, but those are granted before the case has been submitted to an appellate court. See, e.g., Krein v. State, 318 Ark. 172, 883 S.W.2d 481 (1994). This case, however, has already been taken under submission and decided, and a signed opinion by the Court of Appeals has been handed down. See Ark. Sup. Ct. R. 5-2(a).

This same month we decided this identical issue in an unrelated case. See Pannell v. State, 320 Ark. 390, 897 S.W.2d 552 (1995). There, we stated:

After the signed opinion was handed down in this case, the petitioner could have timely filed a petition for rehearing, but a petition for rehearing is limited to calling attention to specific errors of law or fact which the opinion is thought to contain. Ark. Sup. Ct. R. 2-3(g). A rehearing does not encompass a set of new facts, new briefs, and new arguments. Yet, that is precisely what would occur if we granted a motion for a belated appeal after an appellate opinion was handed down. If we were to allow such a practice there would be much less finality to appellate opinions.

Accordingly, the petition for belated appeal is denied. There still may be available to appellant a remedy under Rule 37 of the Arkansas Rules of Criminal Procedure, and neither this per curiam order nor the per curiam order in Pannell v. State, supra, denies an appellant that remedy.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Appellant was convicted of two counts of aggravated assault and sentenced to six years imprisonment. He appealed. The Court of Appeals dismissed the appeal because no effective notice of appeal was filed. Smith v. State, 49 Ark. App. 73, 896 S.W.2d 450 (1995). Appellant’s attorney subsequently filed a motion styled “Motion For A Belated Appeal” and has stated it was his error that resulted in the failure to give an effective notice of appeal. He asks that, because of his error, we grant a belated appeal.

Under authority of Ark. R. Crim. P. Rule 36.9, we grant belated appeals because of attorneys’ errors, but those are granted before the case has been submitted to an appellate court. See, e.g., Krein v. State, 318 Ark. 172, 883 S.W.2d 481 (1994). This case, however, has already been taken under submission and decided, and a signed opinion by the Court of Appeals has been handed down. See Ark. Sup. Ct. R. 5-2(a).

This same month we decided this identical issue in an unrelated case. See Pannell v. State, 320 Ark. 390, 897 S.W.2d 552 (1995). There, we stated:

After the signed opinion was handed down in this case, the petitioner could have timely filed a petition for rehearing, but a petition for rehearing is limited to calling attention to specific errors of law or fact which the opinion is thought to contain. Ark. Sup. Ct. R. 2-3(g). A rehearing does not encompass a set of new facts, new briefs, and new arguments. Yet, that is precisely what would occur if we granted a motion for a belated appeal after an appellate opinion was handed down. If we were to allow such a practice there would be much less finality to appellate opinions.

Accordingly, the petition for belated appeal is denied. There still may be available to appellant a remedy under Rule 37 of the Arkansas Rules of Criminal Procedure, and neither this per curiam order nor the per curiam order in Pannell v. State, supra, denies an appellant that remedy.

Cite This Page — Counsel Stack

Bluebook (online)

898 S.W.2d 468, 320 Ark. 658, 1995 Ark. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-ark-1995.

Opinion

Related

Cite This Page — Counsel Stack