Ronald Dougan v. State of Arkansas

              Ronald R.DOUGAN v. STATE of Arkansas

CR 97-189                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 17, 1997


Appeal & error -- motion for belated appeal -- good cause for
     granting. -- Where counsel failed to accept responsibility for
     the error in filing the notice of appeal, but it was plain
     from the record where the fault lay, the supreme court granted
     requested relief upon a finding that counsel's neglect was the
     occasion for the failure to tender the record in a timely
     manner; the motion for a belated appeal was granted.

     Motion for Belated Appeal; granted.
     S.Kyle Hunter, for appellant.
     No response.
     Per curiam.
     On March 8, 1996, Appellant Ronald R. Dougan was convicted of
rape and sentenced by the St. Francis County Circuit Court to a
term of forty years in the Arkansas Department of Correction.  A
judgment and commitment order was entered of record accordingly on
March 18, 1996.  On March 11, 1996, seven days before the judgment
and commitment order was filed, Appellant filed a motion for new
trial, which was denied by the circuit court on March 20, 1996.  
     Appellant was represented at trial by Timothy G. Tucker. 
Additionally, Mr. Tucker subsequently filed and argued Appellant's
motion for new trial and also filed a notice of appeal on
Appellant's behalf on April 18, 1996.  It is apparent, however,
that prior to his posttrial representation of Appellant,
Mr. Tucker's license to practice law had been suspended.
     The transcript in this matter was tendered to the Supreme
Court Clerk on October 17, 1996, within the time allotted pursuant
to Rule 5 of the Arkansas Rules of Appellate Procedure--Civil, but
the notice of appeal was not timely filed from the entry of the
judgment and commitment order.  Because the motion for new trial
was filed prior to entry of the judgment and commitment order, this
court's clerk does not recognize the motion for new trial for
purposes of calculating the deadline for filing the notice of
appeal.  
     Appellant has since retained new counsel, S. Kyle Hunter, and
on February 20, 1997, Mr. Hunter filed a motion for belated appeal
on the ground that the error in filing the notice of appeal was not
Appellant's and that Appellant's previous counsel has refused to
accept responsibility for the error.
     Generally, where counsel assumes responsibility such motions
are granted routinely.  This court has stated in Shuffield v.
State, 292 Ark. 185, 729 S.W.2d 11 (1987), that where counsel fails
to accept responsibility, but it is plain from the record where the
fault lies, we will grant the requested relief upon a finding that
counsel's neglect was the occasion for the failure to tender the
record in a timely manner.  In this case it is evident that the
failure to bring a timely appeal was the fault of Attorney
Timothy G. Tucker.  We therefore grant the motion for a belated
appeal and direct that a copy of this order be sent to the
Committee on Professional Conduct to be kept in its files for the
Committee's information if any complaint of any kind should later
be filed against Mr. Tucker.  See In Re: Belated Appeals in
Criminal Cases, 265 Ark. 964 (1979) (per curiam).  
     Granted.