Clarence Mixon v. State of Arkansas

Clarence MIXON v. STATE of Arkansas

CR 97-452                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 12, 1997


1.   Appeal & error -- motion for rule on clerk denied -- counsel did not admit
     fault. -- Where appellant had filed a motion for rule on the
     clerk, but his attorney stated that the notice of appeal was
     filed prior to the entry of the judgment and commitment order
     and thus was of no effect, the supreme court denied the motion
     because counsel did not admit fault for filing the notice of
     appeal prematurely.

2.   Appeal & error -- motion for rule on clerk -- conditions for granting. --
     Where an attorney concedes by affidavit that it was his fault
     that the notice of appeal was prematurely filed, or where
     other good cause is shown, then a motion for rule on the clerk
     will be granted.


     Motion for Rule on the Clerk; denied.
     John F. Stroud III, for appellant.
     No response.

     Per Curiam.                
     The appellant, Clarence Mixon, has filed a motion for rule on
the clerk.  His attorney, John F. Stroud III, states that the
notice of appeal was filed prior to the entry of the judgment and
commitment order.  Thus, under rules, the notice of appeal was of
no effect.  See Profit v. State, 326 Ark. 825, 933 S.W.2d 392
(1996).  However, because counsel does not admit fault for filing
the notice of appeal prematurely, we deny the motion. 
     If the attorney will concede by affidavit that it was his
fault that the notice of appeal was prematurely filed, or if other
good cause is shown, then the motion will be granted.  Harkness v.
State, 264 Ark. 561, 572 S.W.2d 835 (1978).  The attorney is given
30 days from issuance of this per curiam order to respond.  If no
response is received within that time, the motion will be treated
as a request for a belated appeal and granted, and a copy of the
order granting the motion will be forwarded to the Committee on
Professional Conduct. 
     Motion denied.