Smith v. State, CR 02-1108.
| Decision Date | 12 December 2002 |
| Docket Number | No. CR 02-1108.,CR 02-1108. |
| Citation | 97 S.W.3d 380,351 Ark. 325 |
| Parties | Melton SMITH v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Dennis R. Molock, Stuttgart, for appellant.
No response.
Appellant Melton Smith was convicted of "Exchanging Money for a Non-Cash Prize," an unclassified misdemeanor that violated Ark.Code Ann. § 26-57-403. Appellant's counsel, Dennis R. Molock, has requested that the clerk accept the record tendered as a result of his notice of appeal. Pursuant to Ark. R.App. P. — Crim. 4(a) (2002), the docketing of the record is governed by the Arkansas Rules of Appellate Procedure — Civil. The clerk has refused to file the record because it was not tendered in conformance with Ark. R.App. P. — Civ. 5(a) and (b) (2002).
Rule 5(a) provides in pertinent part as follows:
The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided.
Ark. R.App. P. — Civ. 5(a) (2002). Rule 5(b) provides in pertinent part as follows:
In cases where there has been designated for inclusion any evidence or proceeding at trial or hearing which was stenographically reported, the circuit court, upon finding that a reporter's transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence of proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order.
Ark. R.App. P. — Civ. 5(b) (2002) (emphasis added).
The relevant dates in this case are as follows:
January 15, 2002 Judgment entered
February 8, 2002 First notice of appeal filed timely by appellant
February 8, 2002 Letter sent by appellant (treated as posttrial motion by trial court)
March 4, 2002 Order denying posttrial motion entered timely
March 5, 2002 Effective date of first notice of appeal
March 15, 2002 Second notice of appeal filed that included appeal of denial of
posttrial motion
May 16, 2002 Motion for extension of time to file transcript filed
June 6, 2002 Order granting extension of time to file record to 10/4/02
October 2, 2002 Record tendered to the Supreme Court Clerk
On January 15, 2002, a judgment was entered and filed in Arkansas County. Appellant timely filed his first notice of appeal on February 8, 2002. Appellant also sent a letter to the trial court on February 8, 2002, in which he asked for reconsideration of his sentence. The trial court treated this letter as a posttrial motion, and on March 4, 2002, the trial court timely denied this motion, thus making the first notice of appeal's effective date March 5, 2002, pursuant to Ark. R.App. P. — Crim. 2(b)(2) (2002).
Without the posttrial motion, the record would have been due to be filed on or before May 9, 2002; but if the letter was correctly interpreted as a posttrial motion, the record was accordingly due to be filed on or before June 3, 2002, which would be ninety days from the effective date of the filing of the first notice of appeal, pursuant to Ark. R.App. P. — Civ. 5(a). At this point, any order by the trial court for an extension to file the record would also have been required to be filed on or before June 3, 2002, pursuant to Ark. R.App. P. — Civ. 5(b) as quoted earlier.
After the trial court's denial of the "posttrial motion" letter, appellant filed a timely second notice of appeal on March 15, 2002. In reading this second notice of appeal, it is apparent that it is merely verbatim the first notice of appeal with an additional clause to add an appeal of the denial of the posttrial motion. Ark. R.App. P. — Crim. 2(b)(2) allows a party who seeks to appeal from the grant or denial of a posttrial motion to amend a previously filed notice of appeal. That is exactly what happened in this case. As stated earlier, Mr. Molock filed a first notice of appeal after the judgment was entered, appealing the judgment. Because of the filing of the posttrial motion, however, the first notice of appeal was not made effective until March 5, 2002, pursuant to Ark. R.App. P. — Crim. 2(b)(2):
A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding .... Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice ....
Thus, the first notice of appeal was effective to appeal the judgment. 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. The second notice of appeal served only to amend the first notice so as to add an appeal of the denial of the posttrial motion, as allowed by Rule 2(b)(2). For this reason, the second notice of appeal is of no consequence in this motion for rule on clerk because the Arkansas Rules of Appellate Procedure are clear that the tendering of the record is clocked from the date of the filing of the first notice of appeal. See Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986) ( ).
Rule 5 of the Arkansas Rules of Appellate Procedure — Civil further provides that the trial court may order an extension of time to file the record, but the order must be entered before the expiration of the ninety-day period provided in subsection (a). Ark. R.App. P. — Civ. 5(b). See also Smith v. State, 341 Ark. 252, 15 S.W.3d 344 (2000). Appellant filed a motion for extension of time to file transcript pursuant to Rule 5(b) on May 16, 2002. The trial court entered an order granting the extension, but that order was entered and filed on June 6, 2002, which was more than ninety days after the effective date the first notice of appeal was filed.
The dissent incorrectly states that the majority would start the running of the mandatory ninety-day record-filing period on March 5, 2002. This is because the mandatory ninety-day period begins with the date of the filing of the first notice of appeal, although the date of that notice of appeal is not effective until the day after the granting or denial of the posttrial motion if the first notice of appeal was filed before disposition of a posttrial motion. Once again, that is exactly what happened in this case. The running of the ninety-day time period would have begun on February 8, the date the first notice of appeal was filed, if appellant had not filed his posttrial motion. However, because the posttrial motion was filed, the first notice of appeal was not considered filed until the day after the denial of the motion — March 5. In a case in which there is no notice of appeal filed before disposition of a posttrial motion, the first notice of appeal would be the notice filed after the grant or denial of the posttrial motion pursuant to Ark. R.App. P. — Crim. 2(b)(1), which states in pertinent part:
... Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Ark. R.App. P. — Crim. 2(b)(1).
The dissent also states that it "seems bizarre that a notice of appeal from a judgment would be presumed to be a notice of appeal from the order denying the motion for reconsideration." This statement, however, is inaccurate. The first notice of appeal did nothing more than appeal the judgment, but the first notice of appeal was not made effective until the day after the denial of reconsideration. The second notice of appeal acted as an amended notice of appeal and simply added an appeal of the denial of the posttrial motion. The majority is well aware that only the March 15 notice appealed both the judgment and the denial of the posttrial motion. However, because Ark. R.App. P. — Civ. 5(a) specifically states that the running of the mandatory 90-day recordfiling period begins with the date of the filing of the first notice of appeal, and because the effective date of that first notice was March 5,...
To continue reading
Request your trial
-
Servewell Plumbing, LLC v. Summit Contractors, Inc.
...matter, we grant the motion for rule on clerk. In holding as we do on this point, we note that the cases of Smith v. State, 351 Ark. 325, 97 S.W.3d 380 (2002) (per curiam) and Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986), are distinguishable. In both those cases, we upheld the f......
-
State v. Bragg
...of appeal, or whether one party files more than one notice of appeal, as was the case here. See id.; see also Smith v. State, 351 Ark. 325, 97 S.W.3d 380 (2002) (per curiam) (holding that ninety days began to run from filing of first notice of appeal, which was effective to appeal judgment,......
- Munn v. State, 351 Ark. 324