Opinion
No. CR08-1320
Opinion Delivered April 30, 2009
Motion for Belated Brief, Granted.
Appellant Kenny Travis, Jr., by and through his counsel Craig Lambert, moves this court for leave to file a belated brief in his Rule 37 appeal. This court affirmed Appellant's conviction and life sentence for capital murder. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). Appellant filed a timely petition for postconviction relief, which the Mississippi County Circuit Court denied by order entered February 20, 2008. This court granted Appellant's motion for belated appeal, finding that Appellant had not received a copy or notice of that order and therefore had demonstrated good cause for filing an untimely notice of appeal. Travis v. State, 375 Ark. 244, ___ S.W.3d ___ (2008) (per curiam).
Appellant's motion is captioned as one for leave to file opening brief out-of-time, which we will treat as a motion for belated brief.
The record was lodged and briefing commenced on December 11, 2008. Appellant was granted a final extension for filing his brief, which was due in this court on March 6, 2009. On March 3, 2009, Appellant filed a motion to stay briefing schedule and petition for writ of certiorari to complete the record, alleging that a coroner's report had been filed with the circuit court on February 26, 2008, six days after the circuit court denied Appellant's petition for postconviction relief. This court denied the motion to stay briefing schedule and petition for writ of certiorari to complete the record on April 2, 2009. Thereafter, on April 8, 2009, Appellant tendered his brief and filed the instant motion requesting to file the belated brief.
We will accept a criminal appellant's belated brief to prevent an appeal from being aborted. See Brown v. State, 373 Ark. 453, 284 S.W.3d 481 (2008) (per curiam). However, good cause must be shown to grant the motion. See Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (holding that appellate counsel's admitted failure to timely file the brief constituted good cause to grant motion for belated brief); see also In re Belated Appeals in Criminal Cases, 265 Ark. App'x 964 (1979) (per curiam).
Here, Appellant's counsel accepts full responsibility for failing to timely file Appellant's brief while awaiting this court's ruling on the motion to stay briefing schedule and petition for writ of certiorari to complete the record. Accordingly, we grant the motion to file a belated brief and forward a copy of this order to this court's Committee on Professional Conduct.
Motion granted.