Opinion
Appeal from the Jefferson Circuit Court; H.A. Taylor, Judge.
John Wesley Hall, Jr., Little Rock, for appellant.
Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Petition for Rehearing denied.
MAYFIELD, Judge, dissenting.
This court has today denied appellant's petition for rehearing in the above case. I do not agree. I think the petition for rehearing should be granted, and we should certify the case to the Arkansas Supreme Court based upon the following considerations:
First: On September 28, 1989, after petitioner was given leave by our supreme court to petition the trial court to reconsider his motion for new trial, the trial court entered an order reinstating petitioner's motion. The trial court heard the motion on October 23, 1989. For reasons unknown to us, an order denying petitioner's motion was not entered until April 10, 1991, some eighteen months later. Petitioner filed a notice of appeal to this court on April 26, 1991, and on October 14, 1992, we dismissed the appeal finding that petitioner had not filed a notice of appeal within 30 days after his motion for new trial and that, pursuant to Appellate Procedure Rule 4(c), appellant's motion for new trial was deemed denied 30 days after the reinstatement of his motion.
Second: Appellate Procedure Rule 4 provides in section (a) that, except as otherwise provided in subsequent sections of the rule, a notice of appeal must be filed within 30 days from the entry of the judgment, decree, or order appealed from. Sections (b) and (c), when considered together provide, among other things, that the time for filing notice of appeal shall be extended upon the filing in the trial court of a motion for a new trial under Civil Procedure Rule 59(b). Third: Civil Procedure Rule 59(b) provides that a motion for a new trial shall be filed not later than 10 days after the entry of judgment. Civil Procedure Rule 1 provides that the civil procedure rules govern the procedure in all suits or actions of a civil nature.
Fourth: Criminal Procedure Rule 1.2 provides that the criminal procedure rules shall govern the proceedings in all criminal cases. Criminal Procedure Rule 36.9 provides that a person desiring to appeal a judgment or order shall file a notice of appeal within 30 days from the date of sentence and entry of judgment or order denying post-conviction relief by the trial judge. Criminal Procedure Rule 36.22 provides a person convicted of either a felony or misdemeanor may file a motion for new trial prior to the time fixed to file a notice of appeal (30 days under Rule 36.9). This rule does not specify a limitation on the time a trial court must dispose of a motion for new trial and does not contain the "deemed denied" provision contained in Appellate Procedure Rule 4(c).
Fifth: I do not believe Criminal Procedure Rule 36.22 should be read in conjunction with the "deemed denied" provision of Appellate Procedure Rule 4(c). This is inconsistent in that Rule 4(b) is specific in listing only three post-trial motions that extend the time for filing notice of appeal; had our supreme court intended this rule to apply to criminal cases, I believe it would have said so. The "deemed denied" provision of Rule 4(c) specifically states "if a timely motion listed in section (b) of this rule is filed in the trial court" and the trial court neither grants nor denies the motion within 30 days of its filing the motion will be "deemed denied." Moreover, Civil Procedure Rule 59(b) requires a motion for new trial to be filed within 10 days after entry of judgment; whereas, under Criminal Procedure Rule 36.22 a person convicted of a felony or misdemeanor may file a motion for new trial within 30 days after entry of judgment. Thus not only does Appellate Procedure Rule 4 conflict with Criminal Procedure Rule 36.22, but Civil Procedure Rule 59(b), one of the motions listed in Appellate Procedure Rule 4, also conflicts with Criminal Procedure Rule 36.22.
Therefore, I would grant the petition for rehearing and certify this case to our supreme court under Rule 29(1)(c) of the Rules of the Arkansas Supreme Court and Court of Appeals.
I also note that our opinion in this case cited two nonpublished decisions. This appears to conflict with Arkansas Supreme Court and Court of Appeals Rule 21(4). See also Aaron v. Everett, 6 Ark.App. 424, 426, 644 S.W.2d 301, 302 (1982).