John Otto Downing, Jr. v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-727
JOHN OTTO DOWNING, JR.,
PETITIONER,
Opinion Delivered February 28, 2007
MOTION FOR BELATED APPEAL
VS.
STATE OF ARKANSAS,
RESPONDENT,
GRANTED.
PER CURIAM
Appellant John Otto Downing, Jr., by and through his attorney, has filed a motion for
belated appeal. His attorney, Dick Jarboe, states in the motion that he erred in filing a notice
of appeal from Downing’s entry of a conditional plea of guilty on April 6, 2006, rather than
from the April 6, 2006 judgment, as required by Ark. R. Crim. P. 24.3(b) (2006). See
McDonald v. State, 354 Ark. 28, 124 S.W.3d 438 (2003).
This court clarified its treatment of motions for rule on clerk and motions for belated
appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated that
there are only two possible reasons for an appeal not being timely perfected: either the party
or attorney filing the appeal is at fault, or there is “good reason.” Id. at 116, 146 S.W.3d at
891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Jarboe has candidly admitted fault.
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee
on Professional Conduct.
Motion granted.
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