The opinion
Conley Byrd, Justice. This is a motion by petitioner Alfred D. Harkness for a rule on the Clerk to file a record tendered two days late — i.e. on the 92nd day. Attached to the motion is the affidavit of Frank C. Elcan II, the Deputy Public Defender for Crittenden County from which it appears that he, as attorney for Petitioner, had inadvertently miscalculated the 90 day limit for filing appeals in this Court. The authorities Blanchard v. Brewer, 429 F. 2d 89 (8th Cir. 1970), hold that the denial of an appeal for such causes amounts to a denial of a constitutional right, on the theory that such a miscalculation, although honestly made, amounts to ineffective assistance of counsel.
The State has not controverted the affidavit of Frank C. Elcan II. Consequently, we must accept the assertions in the affidavit as true for purpose of hearing this motion.
Since to deny the Motion for a Rule on the Clerk would furnish grounds for Petitioner to obtain a new trial in a post-conviction proceeding, we as a pragmatical matter must grant the motion to docket the record as a belated appeal.
Rule granted.
Hickman, J., dissents.