Summary
The Arkansas Supreme Court grants Jayson Wayne Carroll's motion for rule on the clerk after determining that his attorney failed to timely tender the appellate record. The court explains that the record was not filed within the time required by the Arkansas Rules of Appellate Procedure—Civil and forwards a copy of the opinion to the Committee on Professional Conduct.
Topics
Practice areas
Questions Presented
- Whether the clerk should be directed to accept an untimely tender of the appellate record when the circuit court failed to enter an extension order before expiration of the filing period.
- Whether counsel must file an affidavit admitting fault before the Supreme Court will consider a motion for rule on the clerk.
Holdings
- The record was not timely filed because the circuit court's order extending the filing period was not entered before the original filing period expired, and the record was tendered after the applicable deadline.
- An affidavit admitting fault is not required before the court will consider a motion for rule on the clerk, although counsel should candidly admit fault when responsible for the untimely perfection of the appeal.
Key quotations
“Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected.” (371 Ark. at 135)
“The motion for rule on clerk is granted.” (371 Ark. at 135)
Factual background
Carroll's notice of appeal was filed on January 23, 2007, making April 23, 2007 the deadline for filing the record under the applicable appellate rule. A motion to extend the filing period was timely filed, but the circuit court's extension order was not entered before the deadline. The record was not certified and tendered to the appellate clerk until July and August 2007, respectively.
Procedural history
The circuit court entered judgment and a commitment order on January 10, 2007, and Carroll filed a notice of appeal on January 23, 2007. Although a motion to extend the time for filing the record was timely filed and heard, the circuit court did not enter the extension order before the applicable deadline. The record was certified on July 25, 2007, and tendered to the Supreme Court clerk on August 14, 2007. The Supreme Court granted the motion for rule on the clerk and forwarded the opinion to the Committee on Professional Conduct.