Opinion
Delivered April 15, 1999
Our Committee on Criminal Practice recommended a change to Rule 8.2 and the adoption of a new Rule 8.6. Previously, these proposals were published for comment.
We now adopt the amendment to Rule 8.2, and this amendment is effective immediately. Rule 8.2 is republished in its entirety below.
We also adopt Rule 8.6, and it shall become effective July 1, 1999. It is published below.
RULE 8. RELEASE BY JUDICIAL OFFICER AT FIRST APPEARANCE
RULE 8.2. Appointment of Counsel.
(a) An accused's desire for, and ability to retain, counsel should be determined by a judicial officer before the first appearance, whenever practicable.
(b) Whenever an indigent accused is charged with a criminal offense and, upon being brought before any court, does not knowingly and intelligently waive the appointment of counsel to represent him, the court shall appoint counsel to represent him unless he is charged with a misdemeanor and the court has determined that under no circumstances will imprisonment be imposed as a part of the punishment if he is found guilty.
(c) Attorneys appointed by municipal courts, city courts, police courts, and justices of the peace may receive fees for services rendered upon certification by the presiding judicial officer if provision therefor has been made by the county or municipality in which the offense is committed or the services are rendered. Attorneys so appointed shall continue to represent the indigent accused until relieved for good cause or until substituted by other counsel.
Reporter's Notes: The addition of the last sentence to Rule 8.2 (c) is intended to ensure that where counsel is appointed in municipal court, the appointment continues for purposes of this rule even in circuit court proceedings unless and until appointed counsel is relieved or new counsel is appointed.
RULE 8.6. Time for Filing Formal Charge.
If the defendant is continued in custody subsequent to the first appearance, the prosecuting attorney shall file an indictment or information in a court of competent jurisdiction within sixty days of the defendant's arrest. Failure to file an indictment or information within sixty days shall not be grounds for dismissal of the case against the defendant, but shall, upon motion of the defendant, result in the defendant's release from custody unless the prosecuting attorney establishes good cause for the delay. If good cause is shown, the court shall reconsider bail for the defendant.
Reporter's Notes: This rule is intended to address the problem identified in State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996), modified on rehearing, 327 Ark. 287, 938 S.W.2d 815 (1997), wherein the person was arrested without a warrant, was continued in custody beyond his first appearance in municipal court, but waited over two months before his case was formally filed in circuit court by the filing of an information. This rule contemplates that, in the typical case, formal charges should be filed within a reasonable time following an arrest with sufficient latitude being given for circumstances that are beyond the prosecuting attorney's control and which necessitate a delay in the filing of formal charges. Nothing in this rule shall be construed to abrogate the defendant's privilege to file an application for writ of habeas corpus or any other applicable extraordinary remedy.