# Efurd v. State

> Supreme Court of Arkansas · April 3, 2003 · 352 Ark. 476

URL: https://www.frixlaw.com/law-library/cases/9662160

## Case

- **Full name:** Alisa D. EFURD v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** April 3, 2003
- **Citations:** 352 Ark. 476; 101 S.W.3d 800; 2003 Ark. LEXIS 169
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Hannah
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662160

## Opinion text

Robert L. Brown, Justice, dissenting. What bothers stice, Efurd’s pro se motion for belated appeal as well as her counsel’s motion is that her Rule 37 appeal has been thwarted by ineffective counsel. The operative times are these:
• February 23, 1999 — Mandate issued affirming Ms. Efurd’s first-degree murder conviction.
• August 31, 1999 — Fier Rule 37 petition was denied.
• September 27, 1999 — She filed a petition for reconsideration which was denied on October 4, 1999.
• October 14, 1999 — She filed a petition to amend her reconsideration motion which was denied on October 22, 1999.
• November 10, 1999 — Ms. Efurd’s counsel filed her notice of appeal.
• December 12, 2002 — She filed her motion for belated appeal pro se.
• February 7, 2003 — Ms. Efurd’s counsel filed a Motion for Belated Appeal and Rule on Clerk.
During 1999, Ms. Efurd had counsel. After filing an untimely notice of appeal, her counsel did nothing more until February 7, 2003. He then filed a motion for belated appeal and rule on clerk. However, this was only after Ms. Efurd filed her pro se motion for belated appeal almost two months earlier.
The majority denies her motion for belated appeal because our Criminal Appellate Rules state that “no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry ... of the order denying postconviction relief[.]” Ark. R. App. P.- — Crim. 2(e). Here, Ms. Efurd, understandably, believed her notice of appeal was timely and on track. As it happens, the notice was not timely because petitions for reconsideration do not extend the time for filing an appeal from an order denying postconviction relief. See Ark. R. Crim. P. 37.2(d). In short, her appeal has been sandbagged by ineffective counsel.
Under these facts, I do not believe our 18-month rule should be read so strictly as to deny due process to Ms. Efurd. The only reason her appeal was not timely filed was due to ineffective counsel.
In a similar situation, the Florida Supreme Court entertained an appeal where the defendant wanted to appeal the denial of his postconviction motion but was not properly advised by counsel about how to do so. See Williams v. State, 777 So. 2d 947 (Fla. 2000). The court noted that the proper remedy for the defendant now was to petition for a writ of habeas corpus. The court further observed the need to amend its rule to permit certain belated appeals from denials of postconviction relief. The relevant rule was amended and now permits a belated appeal from the denial of postconviction relief “upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so.” Fla. R. Crim. P. 3.850(g). A second Florida rule, Fla. R. App. P. 9.141(c)(4), was also added. That rule limits the time period in which a defendant may seek a belated appeal to two years after the expiration of time for filing the notice of appeal from a final order, but it contains an exception:
(4) Time Limits.
(A) A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal frqm a final order, unless it alleges under oath with a specific factual basis that the petitioner
(i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and
(ii) should not have ascertained such facts by the exercise of reasonable diligence.
I agree with the sanction against Mr. Atkinson, but I would read into our rules a comparable exception and afford Ms. Efurd a belated appeal. For these reasons, I respectfully dissent.
Hannah, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662160. Public record. Not legal advice.