*1 561 not sustained conclusion is surance i.e. appellant’s record.
Affirmed. Fogleman Harris, C.J., agree:
JJ.
Alfred D. of Arkansas HARKNESS STATE 835 2d 78-107 CR delivered November Opinion Elcan, II, for appellant. Clinton, Gen., for Bill Atty. appellee. Conley Byrd, This is a motion Al- by petitioner Justice. D. fred Harkness for a rule on the Clerk file a record
tendered two late i.e. on the days 92nd Attached to day. the motion II, is the affidavit of Frank C. Elcan the Deputy Public Defender for Crittenden from which it County appears he, Petitioner, had mis- attorney inadvertently calculated the 90 limit for day Court. filing appeals this Brewer, The authorities Blanchard v. (8th 429 F. Cir. 1970), hold that the denial of such causes amounts to a denial of a on constitutional right, theory made, miscalculation, amounts honestly that such although *2 counsel. of to ineffective assistance of controverted the The State has not affidavit in the the assertions II. we Elcan accept Consequently, of this motion. affidavit as true for hearing purpose for the Clerk would to the Motion a Rule on Since deny a to obtain new trial in a furnish for Petitioner post- grounds matter must conviction we a pragmatical proceeding, motion to docket the record as a belated the grant appeal. Rule granted. J.,
Hickman, dissents. I dissenting. Justice, respectfully Darrell with the I would the motion and let disagree majority. deny the matter in another manner. proceed
First I should out that we have denied such point motions where a defendant was a retained at- represented by in at the same time we have the the mo- torney; past granted fail, failed, tion where counsel was I have and still appointed. to see the distinction. I do believe that due of law process can make such a distinction. I the and trust hope majority will in the future not make such a distinction. so, we Even should not counsel in this pre-judge
case was ineffective a kind word for That may negligent. not be the case. to, to,
All to know how and be able expected an In civil we cases have adhered to perfect appeal. rigidly our rule that “ineffectiveness” is no excuse for to failing Howell, Bernard Ark.
I would that a criminal defendant should not be agree denied an for the same the reason because appeal obviously be results can and the ineffec- terribly unjust remedy against would, bases, tive counsel in most In other unsatisfactory. sued money can be damages words, civil case in a defendant, in- criminal not do a It would for negligence. much for several years, carcerated penitentiary Denial his damages. could sue lawyer know that he in dollars and measured that can be freedom is not cents. be made of counsel should of ineffectiveness
A decision a hear- notice. Such at a court a trial hearing proper lie, at where would responsibility ing place would con- whether hired feet of counsel appointed. our that we change cede that such require if the court finds such trial rules That defendant from appealing. tiveness prevented *3 Proc., Rule 37 matter, Rules of Crim. be a amending simple the matter to heard Such permit fashion. Here we are presuming orderly evenly without first hearing. negligence giving counsel, matter that There is additional being or with serious whether retained carries respon- appointed, is that be borne. How sibilities do, all know and be able to that not, so, who do or cannot do because and those blame extra ex- tiveness, bear the and any should rightfully pense. what do when a is the additional factor of we will
There late. I we will record tendered is ninety days thirty suppose rule, one, it is a have made a We within must be to the clerk that all trial records tendered rule. after ninety days judgment. simply ignoring if we decision more grace might accept majority’s to enforce a the rule. If we are simply repeal going rule, bench, the bar and the we owe it to the then public it. repeal