Revised Rules of Appellate Procedure, Matter of

• Court: Arkansas Supreme Court
• Writing for the Court: Upon a mandate of reversal ordering a new trial being filed in the clerk's office of the circuit court in which the judgment of confinement in the penitentiary was rendered and executed, the clerk shall deliver to the sheriff a copy of the mandate an
• Citation: Revised Rules of Appellate Procedure, Matter of, 900 S.W.2d 560 (Ark. 1995)
• Decision Date: 10 July 1995
• Parties: In re in the Matter of the Adoption of REVISED RULES OF APPELLATE PROCEDURE.

Page 560

900 S.W.2d 560

In re in the Matter of the Adoption of REVISED RULES OF APPELLATE PROCEDURE.

Supreme Court of Arkansas.

July 10, 1995.

PER CURIAM.

On December 12, 1994, we submitted by per curiam order proposals prepared by the Arkansas Supreme Court Committees on Civil and Criminal Practice to divide the Arkansas Rules of Appellate Procedure into Civil and Criminal sections. This was part of a plan to remove from the Arkansas Rules of Criminal Procedure those rules pertaining to appeals and place them, as revised, in the Arkansas Rules of Appellate Procedure. We asked for comment from the bench and bar and stated that the Rules would become effective January 15, 1995, unless altered by further order. On February 13, 1995, we published a second per curiam order extending the time for comment from the bench and bar to May 1, 1995.

We hereby adopt the Revised Rules of Appellate Procedure, to be effective on January 1, 1996.

ARKANSAS RULES OF APPELLATE PROCEDURE--CRIMINAL TABLE OF CONTENTS

Rule 1. Right of Appeal

Rule 2. Sentencing and Entry of Judgment

Rule 3. Time and Method of Taking Appeal

Rule 4. Appeal by State

Rule 5. Time for Filing Record, Contents of Record

Rule 6. No Bond for Cost

Rule 7. Bail on Appeal

Rule 8. Appeal after Confinement

Rule 9. Exceptions and Motion for New Trial Unnecessary

Rule 10. Other Remedies Not Abolished

Rule 11. Acquittal Barring Prosecution

Rule 12. Affirmance of Death Sentence; Procedure

Rule 13. Proceedings on Reversal

Rule 14. Deduction of Confinement under Prior Conviction

Rule 15. Judgment for Costs

Rule 16. Matters to be Considered on Appeal

Rule 17. Action to be Taken on Appeal

Rule 18. Trial Counsel's Duties with Regard to Appeal

Rule 19. Time Extension when Last Day for Action on Saturday, Sunday or Holiday

Rule 20. Uniform Paper Size

RULES OF APPELLATE PROCEDURE--CRIMINAL

Rule 1. RIGHT OF APPEAL

(a) Right of Appeal. Any person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas. An appeal may be taken jointly by co-defendants or by any defendant jointly charged and convicted with another defendant, and only one (1) appeal need be taken where a defendant has been found guilty of one (1) or more charges at a single trial. Except as provided by A.R.Cr.P. 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere. [Amended by Per Curiam July 13, 1987, effective October 1, 1987.]

(b) Precedence. Appeals in criminal cases shall take precedence over all other business of the Supreme Court. Appeals under R.A.P.Civ. 2(a)(6), (7), and (9) shall take next precedence in the Supreme Court.

(c) Death of Defendant. No appeal shall be taken after defendant's death, and upon his death an appeal taken during his life shall abate and shall not be revived.

Reporter's Notes to Rule 1 (1995): Subsection (a) is former A.R.Cr.P. 36.1 modified only by substituting "A.R.Cr.P. 24.3" for "Rule 24.3." The first sentence of subsection (b) is former A.R.Cr.P. 36.2. The second sentence is former R.A.P. 2(c) slightly modified. Subsection (c) is former A.R.Cr.P. 36.3.

Rule 2. SENTENCING AND ENTRY OF JUDGMENT

Upon the return of a verdict of guilty in a case tried by a jury, or a finding of guilty in a case tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, at which time probation reports may be submitted, matters of mitigation presented or any other matter heard that the court or the defendant might deem appropriate to consider before the pronouncement of sentence and entry of the formal judgment. The defendant may file a written demand for immediate sentencing, whereupon the trial judge may cause formal sentence and judgment to be made of record. At the time sentence is pronounced and judgment entered, the trial judge must advise the defendant of his right to appeal, the period of time prescribed for perfecting the appeal, and either fix or deny bond. [Amended by Per Curiam May 30, 1989, effective July 1, 1989; Amended by Per Curiam dated Oct. 29, 1990, effective Jan. 1, 1991.]

Reporter's Notes to Rule 2 (1995): This rule is former A.R.Cr.P. 36.4, with grammatical changes.

Rule 3. TIME AND METHOD OF TAKING APPEAL

(a) Notice of Appeal. Within thirty (30) days from

(1) the date of entry of a judgment; or

(2) the date of entry of an order denying a post-trial motion under R.A.P.Crim. 10; or

(3) the date a post-trial motion under R.A.P.Crim. 10 is deemed denied pursuant to R.A.P.Civ. 4(c); or (4) the date of entry of an order denying a petition for postconviction relief under A.R.Cr.P. 37,

the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both appealed.

(b) Time for Filing. A notice of appeal is invalid if filed at any time prior to the day that the judgment or order appealed from is entered or prior to the day that a post-trial motion is deemed denied except as provided herein. If a notice of appeal is filed on the same day that the judgment or order appealed from is entered or on the day that a post-trial motion is deemed denied, the notice of appeal shall be effective. A notice of appeal filed within thirty (30) days of entry of the judgment of conviction shall be effective to appeal the judgment, even if a post-trial motion is subsequently filed. If a post-trial motion is filed after the notice of appeal, it shall not be necessary, to preserve the appeal of the judgment of conviction, to file another notice of appeal of the judgment. If an appellant wishes to appeal an adverse ruling on a post-trial motion and the appellant has previously filed a notice of appeal of the judgment, the appellant must file a notice of appeal regarding the ruling on the motion within the time provided in subpart (a)(2) or (3) hereof.

(c) Certificate That Transcript Ordered. The notice of appeal shall include either a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter or a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal. It shall not be necessary to file with either the notice of appeal or the designation of contents of record any portion of the reporter's transcript of the evidence of proceedings.

(d) Notification of Parties. Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives and to the Attorney General, but failure to give such notification shall not affect the validity of the appeal.

(e) Failure to Pursue Appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.

(f) Dismissal of Appeal. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant. [Amended by per curiam October 25, 1976; amended December 18, 1978; amended by per curiam January 25, 1988, effective March 1, 1988; amended by per curiam January 31, 1994.]

Court's Comment to Rule 3(b) (1995): Rule 3(b) makes clear that a notice of appeal filed on the same day as the judgment or order is effective, even though filed on that day before the judgment or order appealed from.

Reporter's Notes to Rule 3 (November, 1994): Rule 3 is former A.R.Cr.P. 36.9. Subsection (b) has been modified to address cases where both a notice of appeal and a post-trial motion are filed. The subsection changes present law, under which a notice of appeal is invalid if filed before the entry of an order denying a post-trial motion or before the motion is "deemed denied" under R.A.P.Civ. 4(c). See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993) (per curiam), affirming Kimble v. Gray, 40 Ark.App. 196, 842 S.W.2d 473 (1992). See, also, Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993) (per curiam).

The second sentence of subsection (c) of this rule is former A.R.Cr.P. 36.18.

This rule applies in A.R.Cr.P. 37 cases only as to appeals from an actual denial of the Rule 37 petition: the "deemed denied" provision of R.A.P.Civ. 4(c) does not apply to Rule 37 petitions.

Court's Comment to January 1994 Amendment: The 1993 amendment was adopted to clarify that if a post-trial motion in the nature of a motion for a new trial or amendment of judgment is not resolved by the trial court within 30 days from the date of its filing, it is deemed denied under A.R.A.P. 4(c),...