Opinion
CR 95-644
Opinion delivered July 3, 1995
APPEAL ERROR — MOTION FOR RULE ON THE CLERK TREATED AS MOTION FOR BELATED APPEAL — GOOD CAUSE FOR GRANTING. — Where an attorney for a criminal defendant in his motion for a rule on the clerk admitted that he filed the notice of appeal prematurely, the motion was treated as one for a belated appeal and granted.
Motion for Belated Appeal; granted.
Howard M. Holthoff, for appellant.
No response.
Johnny R. Brown, by his attorney, has filed a motion for a rule on the clerk. His attorney, Howard M. Holthoff, states by motion that he timely tendered the transcript on its due date, June 7, 1995, and that thereafter, he was notified the transcript could not be filed because the notice of appeal was filed prior to the judgment. The notice of appeal was filed of record on November 7, 1994, at 11:50 a.m., while the judgment was entered of record November 7, 1994, at 2:00 p.m. Thus, the notice of appeal was of no effect. Ark. R. App. P. 4; Woods v. State, 316 Ark. 705, 873 S.W.2d 562 (1994) (per curiam); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).
[1] Attorney for appellant, by motion, admits responsibility for filing the notice of appeal prematurely. Consequently, we treat this motion as a motion for belated appeal. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion pursuant to Ark. R. Crim. P. 36.9. J.B. Whitley v. State, 317 Ark. 647, 882 S.W.2d 670 (1994) (per curiam); see In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Therefore, we grant the motion for belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.