Brian Vinson v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR07-495
Opinion Delivered June 14, 2007
BRIAN VINSON,
MOTION FOR RULE ON CLERK.
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Appellant Brian Vinson, by and through his attorney, F. Parker Jones III, has filed a
motion for rule on clerk. On April 26, 2006, Vinson was sentenced to thirty-eight years in the
Arkansas Department of Correction for aggravated assault, aggravated robbery, and theft of
property. Vinson’s trial attorney, Thomas Burns, timely filed a notice of appeal on May 24,
2006. The due date for lodging the record expired on August 21, 2006, and no motion for
extension of time was filed. On August 23, 2006, the circuit court entered an order, which
declared Vinson indigent and appointed Parker Jones as the attorney on appeal. The docket
sheet reveals that a partial record was tendered on May 16, 2007.
Pursuant to Rule 16 of the Arkansas Rules of Appellate Procedure–Criminal, “[a]fter
the notice of appeal of a judgment of conviction has been filed, the appellate court shall have
exclusive jurisdiction to relieve counsel and appoint new counsel.” Ark. R. App. P.–Crim. 16
(2007). Additionally, once the notice of appeal is filed with the circuit clerk, only the appellate
court can relieve counsel of the obligation to proceed with the appeal. Franklin v. State, 317
Ark. 42, 875 S.W.2d 836 (1994).
With regard to Vinson’s motion for rule on clerk, this court clarified its treatment of
motions for rule on clerk in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There
we said 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.” 356 Ark. 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
when he has erred and is responsible for the failure to perfect the appeal. See id.
Here, it is plain from Vinson’s motion that Burns failed to file the record before the
ninety days expired on August 21, 2006, as required by Ark. R. Civ. P. 5(a) (2007). Two days
later, the circuit court appointed Jones as counsel, but under Franklin, supra, the circuit court
did not have jurisdiction to enter that order, as the notice of appeal had already been filed. The
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motion for rule on clerk is granted. If Vinson wishes to pursue an appeal without Burns as
counsel, Burns must file a motion to withdraw with our court. At that time, Vinson may file
a request for indigency and affidavit of indigency under Ark. Sup. Ct. R. 6-6, or Jones may file
a motion for substitution of counsel. A copy of this opinion will be forwarded to the
Committee on Professional Conduct.
Motion granted.
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