PACK v. STATE (1998)

MOTION FOR RULE ON THE CLERK

Shane Pack, by his attorney, Clarence W. Cash, has filed two motions for belated appeal, which are, in reality, motions for rule on the clerk.

The first motion admits that the record was not timely filed from counsel's notice of appeal and that this was error.   The second motion asks that the first motion be set aside because a second notice of appeal was filed by the public defender, and the record would be timely if calculated from that date.   Mr. Cash contends that only the public defender was counsel of record when the two notices of appeal were filed.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his or her part.   See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986).   Here, the attorney's second motion does not admit fault on his part.   Rather, he argues that he was not counsel of record when he filed his notice of appeal and that the subsequent notice of appeal filed by the public defender as counsel of record was timely.   We disagree.   Mr. Cash filed the first notice of appeal as counsel for the appellant and that notice of appeal governs.   The record was, therefore, untimely, and appellant's motion must be denied.

The appellant's attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motions for rule on the clerk are denied.

PER CURIAM.