Warren v. State

Supreme Court of Arkansas

Warren v. State

938 S.W.2d 857, 327 Ark. 543, 1997 Ark. LEXIS 129

CourtSupreme Court of Arkansas

DecidedMarch 10, 1997

DocketCR 97-166

StatusPublished

This text of 938 S.W.2d 857 (Warren 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

Warren v. State, 938 S.W.2d 857, 327 Ark. 543, 1997 Ark. LEXIS 129 (Ark. 1997).

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Opinion

Per Curiam.

Petitioner, Excel Warren, by his attorney, Zimmery Crutcher, has filed a motion for rule on the clerk or alternatively a motion for dismissal. Appellant received a guilty verdict on July 3, 1996, and filed a notice of appeal on July 18, 1996. However, judgment was not entered until December 18, 1996. The clerk refused to accept the record in this case on January 16, 1997, because the judgment was filed after the notice of appeal. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We will treat petitioner’s motion as one for a belated appeal and will grant the motion upon counsel’s admission of error in failing to perfect the appeal. See eg., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on behalf of the State (or perhaps some unnamed third party). We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State. 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the motions must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal. Upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

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Per Curiam.

Petitioner, Excel Warren, by his attorney, Zimmery Crutcher, has filed a motion for rule on the clerk or alternatively a motion for dismissal. Appellant received a guilty verdict on July 3, 1996, and filed a notice of appeal on July 18, 1996. However, judgment was not entered until December 18, 1996. The clerk refused to accept the record in this case on January 16, 1997, because the judgment was filed after the notice of appeal. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We will treat petitioner’s motion as one for a belated appeal and will grant the motion upon counsel’s admission of error in failing to perfect the appeal. See eg., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on behalf of the State (or perhaps some unnamed third party). We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State. 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the motions must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal. Upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

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Bluebook (online)

938 S.W.2d 857, 327 Ark. 543, 1997 Ark. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-state-ark-1997.

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