Summary
The Arkansas Supreme Court considers whether to grant a motion for rule on the clerk after an appellant tendered the record outside the applicable deadline. The court holds that the ninety-day filing period was calculated from the effective date of the first notice of appeal and that the trial court's extension order was untimely. The motion was denied, subject to counsel filing an affidavit accepting responsibility for the untimely filing.
Topics
Practice areas
Questions Presented
- Whether the ninety-day period for filing the appellate record ran from the filing of the first notice of appeal or from the effective date of that notice after disposition of the posttrial motion.
- Whether a second notice of appeal amended the first notice without changing the date from which the record-filing period was calculated.
- Whether the court should grant a motion for rule on the clerk when the record was untimely tendered and counsel did not accept responsibility for the late filing.
Holdings
- Under Ark. R. App. P. Civ. 5(a), the mandatory ninety-day period for filing the record runs from the filing of the first notice of appeal, even when that notice is not effective until after disposition of a timely posttrial motion.
- The second notice of appeal amended the first notice to add an appeal from the denial of the posttrial motion, but it did not nullify or replace the first notice for purposes of calculating the record-filing deadline.
- An extension order entered after expiration of the applicable ninety-day period is ineffective and cannot extend the time for filing the appellate record.
- A motion for rule on the clerk will not be granted when counsel does not accept responsibility for an untimely record filing.
Key quotations
“Nothing that happened later — the posttrial motion, the denial of the posttrial motion, or the filing of a second (amended) appeal — served to nullify the first notice of appeal.”
“Because Mr. Molock fails to accept responsibility for not filing the record within the required time, appellant’s motion must be denied.”
Factual background
A judgment was entered on January 15, 2002, and Smith filed a timely notice of appeal on February 8. His accompanying letter seeking reconsideration of his sentence was treated as a posttrial motion, which the trial court denied on March 4. The trial court later entered an order extending the time to file the appellate record, but that order was entered after the applicable deadline under the appellate rules; the record was tendered on October 2, 2002.
Procedural history
Smith was convicted in Arkansas County of exchanging money for a non-cash prize. He filed a first notice of appeal on February 8, 2002, and a letter treated by the trial court as a posttrial motion. After the motion was denied, Smith filed a second notice of appeal and obtained a trial-court extension of time to file the record, but the extension order was entered after the applicable ninety-day period had expired. The Supreme Court of Arkansas denied the motion because counsel did not accept responsibility for the untimely filing, while directing counsel to file a motion and affidavit accepting responsibility, after which the motion would be granted.
Remand instructions
Counsel was directed to file within thirty days a motion and affidavit accepting full responsibility for the untimely filing. Upon that filing, the motion for rule on the clerk would be granted.