Nance v. State

Robert L. Brown, Justice, dissenting. I would grant the motion and not send the names of the defense attorneys to the Professional Conduct Committee.

The majority opinion avoids the issue at hand which is the effectiveness of the notice of appeal with respect to the original judgment of conviction. The notice of appeal was filed on April 18, 1994, within 30 days of both the entry of the judgment of conviction for capital murder and the assessment of the death penalty (March 31, 1994) and the entry of the amended judgment (April 11, 1994). That is what our criminal rules contemplate. Ark. R. Crim. P. 36.9(a) reads:

(a) Within thirty (30) days from

(1) the date of entry of a judgment; or

(2) the date of entry of an order denying a post-trial motion under Rule 36.22; or

(3) the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the Rules of Appellate Procedure; or

(4) the date of entry of an order denying a petition for postconviction relief under Rule 37, the person desiring to appeal the judgment or order shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order appealed.

These timeframes are in the alternative. Thus, to appeal from the original judgment of conviction the notice of appeal must be filed within 30 days. To appeal from a judgment of conviction and denial of post-trial motions, additional timeframes are spelled out in Rule 36.9(a).

The majority focuses on Ark. R. Crim. P. 36.9(b) which reads:

(b) A notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from or if it is filed on or before the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the rules of Appellate Procedure.

I interpret subsection (b) to invalidate a premature notice of appeal taken from a denial of the post-judgment motion, but not to invalidate a notice of appeal timely taken from the judgment of conviction itself. Again, the time limitations in Rule 36.9(a) are in the alternative with respect to appeals from the original judgment of conviction.

At worst, our rules are ambiguous on whether the notice of appeal in this case is effective for an appeal solely from the judgment of conviction. If our rules are ambiguous, we need clarification on this point in both our civil and criminal appellate rules. That ambiguity, however, should not work against practicing attorneys and subject them to scrutiny by the Professional Conduct Committee. Our appellate procedure is fraught now with a Gordian Knot complexity. This same issue has been raised several times in the last few weeks. See, e.g., Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328 , 884 S.W.2d 620 (1994); Cason v. House, motion for rule on the clerk denied (94-759 Oct. 3, 1994). Our interpretation of our appellate rules should be to facilitate appeals, not to thwart them.

1 respectfully dissent.

Hays, J., joins.