Victoria S. Williford v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR07-904
VICTORIA S. WILLIFORD,
APPELLANT,
Opinion Delivered September
20, 2007
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Victoria S. Williford, by and through her attorney James D. Burns, filed a motion for
rule on the clerk asking this court to order the clerk to docket the appeal. The clerk refused
to docket the appeal because the record was untimely. The notice of appeal was filed on
March 8, 2007, making the record due by June 6, 2007. Williford attempted to docket the
case on August 3, 2007. It is apparent that the record was presented after the 90 days
permitted under Ark. R. App. P.–Civ. 5(a).
Williford argues that her record was not due until 90 days after entry of the order on
her “Motion For Belated Appeal” filed in the circuit court entered on May 7, 2007. That
motion sought relief for the alleged failure of the circuit clerk to file stamp and enter the
notice of appeal on March 8, 2007, the day on which it was faxed and mailed to the circuit
court. The circuit court entered an order “that the Notice of Appeal was properly and timely
filed on March 8, 2007, and should be file stamped accordingly.” The Notice of Appeal and
Designation of Record contained in the record bears a file stamp of March 8, 2007. Thus,
the notice of appeal was filed on March 8, 2007, and the record had to be filed by June 6,
2007.
We note that although Williford characterized her motion in the circuit court as a
“Motion for Belated Appeal,” it was actually a motion for an order nunc pro tunc entering
the Notice of Appeal on March 8, 2007. A nunc pro tunc order may be entered to make the
court’s record speak the truth or to show that which actually occurred. Miles v. State, 348
Ark. 544, 75 S.W.3d 677 (2002). In Miles, just as in the present case, the trial court’s entry
of the order nunc pro tunc, corrected the record to reflect the date action was taken in the
circuit court.
We will treat the motion as a motion for belated appeal. This court clarified its
treatment of a motion 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 why this is so:
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.
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CR07-904
When it is plain from the motion, affidavits, and record that relief is proper under
either error or good reason, the relief will be granted. Id. If there is attorney error, a copy
of the opinion will be forwarded to the Committee on Professional Conduct. Id.
It is plain from the motion that there was error on Mr. Burns’s part. Burn’s obtained
an order of the circuit court finding that the Notice of Appeal was filed on March 8, 2007,
requiring it to be filed within 90 days of that date under Rule 5(a). He failed to do so.
Pursuant to McDonald, supra, we treat this motion as a motion for belated appeal and grant
it. We also forward a copy of this opinion to the Committee on Professional Conduct.
-3-
CR07-904
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