Yent v. State

Per Curiam. The appellant has filed a motion for a rule to require the Clerk to file a record that was tendered too late. The judgment of conviction was entered on March 8, 1982. Proceedings on a motion for new trial were not terminated until the motion was denied on September 1. The trial court, at the request of counsel, entered orders purporting to extend the time for filing the record to March 31,1983, when it was tendered. Under Appellate Procedure Rule 5 (b) and its predecessor, Act 555 of 1953, § 20, the trial court cannot extend the time for filing the record to a date more than 7 months after the entry of the judgment, although this court may do so for compelling reasons, such as unavoidable casualty. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); Stebbins & Roberts v. Rogers, 223 Ark. 809, 268 S.W.2d 871 (1954); West v. Smith, 224 Ark. 651, 278 S.W.2d 126 (1955). Here counsel made the mistake of obtaining extensions of time in the trial court, past the 7-month deadline, instead of filing a partial record and seeking an extension in this court. It has been suggested that the 7-month limitation was superseded or extended by Act 123 of 1963 and its successor, Appellate Procedural Rule 4, which provide for extensions of time in connection with post-judgment motions, such as a motion for new trial. The extension, however, is only for the filing of the notice of appeal, not for lodging the record in the appellate court. Unlike our Appellate Procedural Rule 4, Federal Appellate Procedural Rule 4 provides in its second paragraph that the running of the time for filing a notice of appeal is terminated as to all parties by a timely post-judgment motion and that “the full time for appeal . . . commences to run and is to be computed from the entry” of the order granting or denying the post-judgment motion. Our Civil Procedure Revision Committee, which drafted our present procedural rules, expressly rejected the plan embodied in the federal rule, stating in its Reporter’s Note to our Appellate Procedural Rule 4: 2. Section (b) does not follow the second paragraph of Rule 4 of the Federal Rules of Appellate Procedure. It was believed that the federal rule permits excessive delay with respect to post-judgment motions that might be filed but not acted upon promptly. Consequently, Sections (b), (c) and (d) preserve the procedure that was prescribed by Act 123 of 1963. It cannot be doubted that the federal rule does permit excessive delay, because the full time for the appellate process begins to run anew upon the filing of a post-judgment motion, and several such motions might be filed successively. The opportunities for intentional delay are innumerable. By contrast, our Rule 4 provides a simple and readily understandable procedure, by which the trial court cannot extend the time for filing the record beyond seven months after the entry of the judgment. During the 20 years our procedure has been in force this is apparently the first instance in which post-judgment proceedings have consumed most of the seven months. Even so, counsel had a simple remedy in this court. In accordance with our per curiam order of February 5, 1979,265 Ark. 964, the motion for a rule on the Clerk will be granted only if counsel assumes full responsibility for the error or shows other good cause for the delay. j For the present, the motion is denied. Adkisson, C.J., concurs. Purtle, J., dissents.