Luwalhati Lalota v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-821
Opinion Delivered
LUWALHATI LALOTA,
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
REMANDED.
PER CURIAM
Appellant Luwalhati Admana Johnson, aka Luwalhati Lalota, acting pro se, has filed
a motion for rule on clerk asking this court to direct the clerk of the court to file her record
and have her appeal docketed. The clerk refused to docket her appeal and would not accept
the record due to a failure to comply with Arkansas Rule of Appellate Procedure-Civil
5(b)(1)(C). Appellant explains that by its plain meaning Rule 5(b)(1)(C) does not make a
hearing mandatory because all parties may have the opportunity to be heard either at a
hearing or by responding in writing. If neither a hearing nor a response in writing takes
place, the Appellant maintains that a waiver has occurred and the extension for time may be
granted.
This court has held that Rule 5(b)(1) applies to both civil and criminal cases for the
determination of the timeliness of a record on appeal. See Roy v. State, ___ Ark. ___, ___
S.W.3d ___ (June 29, 2006). Rule 5(b)(1) provides:
(1) If any party has designated stenographically reported material for inclusion
in the record on appeal, the circuit court, by order entered before expiration
of the period prescribed by subdivision (a) of this rule or a prior extension
order, may extend the time for filing the record only if it makes the following
findings:
(A) The appellant has filed a motion explaining the reasons for
the requested extension and served the motion on all counsel of
record;
(B) The time to file the record on appeal has not yet expired;
(C)All parties have had the opportunity to be heard on the
motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely
ordered the stenographically reported material from the court
reporter and made any financial arrangements required by its
preparation; and
(E) An extension of time is necessary for the court reporter to
include the stenographically reported material in the record on
appeal.
Ark. R. App. P.–Civil 5(b)(1).
On August 8, 2006, the circuit judge entered an order extending the Appellant’s
deadline to file the record to October 10, 2006. The order extending the time to file the
record did not include a statement that all parties have had the opportunity to be heard on
the motion, either at a hearing or by responding in writing, as required by Rule 5(b)(1)(C).
However, the order did state that a hearing was not requested and the prosecuting attorney
did not file an objection. The record, which was originally due on August 8, 2006, was
tendered with the clerk’s office on August 24, 2006.
We have held that “there must be strict compliance with the requirements of Rule
5(b), and that we do not view the granting of an extension as a mere formality.” Roy, ___
Ark. at ___, ___ S.W.3d at ___; see also White v. State, ___ Ark. ___, ___ S.W.3d ___
(May 4, 2006); Rackley v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 27, 2006). An order
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CR06-821
granting an extension of time must show that all parties have had an opportunity to be heard,
either at a hearing or by responding in writing. Ark. R. App. P.–Civil 5(b)(1)(C). Failure
to comply with either option explained in Rule 5(b)(1)(C) does not constitute a waiver.
Accordingly, we remand this matter to the circuit court for compliance with Rule 5(b)(1)(C).
See White, supra.
-3-
CR06-821
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