Opinion
No. CR12-463
06-21-2012
SHANE DONOVAN WADE APPELLANT v. STATE OF ARKANSAS APPELLEE
MOTION FOR RULE ON CLERK
MOTION GRANTED.
PER CURIAM
Appellant, Shane Donovan Wade, by and through his attorney, John O. Russo, has filed a motion for a rule on clerk. The circuit court entered Wade's judgment and commitment order on November 7, 2011, and his notice of appeal was filed on November 23, 2011, making the record due on February 21, 2012. The court reporter was unable to complete the record by the due date, and counsel for appellant filed a motion for an extension of sixty days to file the record. An order granting the motion was entered on February 9, 2012, making the record due on April 21, 2012.
Counsel filed a second motion for an extension of time to file the record on May 11, 2012, which the circuit court granted in an order entered the same day, and he tendered the record with the supreme court clerk on May 25, 2012. The second motion for extension of time was filed by counsel after the extended deadline for filing the record had expired. Arkansas Rules of Appellate Procedure -Criminal 4(c)(1) provides that the circuit court, by order entered before expiration of the period prescribed by subdivision (b) of this rule or by a prior extension order, may extend the time for filing the record. This was not done, which means the time for filing the record expired on April 21, 2012. Because the record was not filed by that date, it was untimely.
We clarified our treatment of motions for rule on clerk and motions for belated appeal in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
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.356 Ark. at 116, 146 SW.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 or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from the motion and record before us that there was error on Mr. Russo's part by not filing the second motion for extension of time by the filing deadline, which ended on April 21, 2012. Pursuant to McDonald, supra, we grant Russo's motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.