{
  "id": 1871374,
  "name": "Roger Stephen SHUFFIELD v. STATE of Arkansas",
  "name_abbreviation": "Shuffield v. State",
  "decision_date": "1987-05-11",
  "docket_number": "CR 87-19",
  "first_page": "185",
  "last_page": "188",
  "citations": [
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      "cite": "292 Ark. 185"
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      "cite": "729 S.W.2d 11"
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    "name_abbreviation": "Ark.",
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      "year": 1981,
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    {
      "cite": "285 Ark. 440",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1877668
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      "weight": 2,
      "year": 1985,
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      "case_paths": [
        "/ark/285/0440-01"
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  "last_updated": "2023-07-14T16:51:01.167469+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Roger Stephen SHUFFIELD v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Steele Hays, Justice.\nAfter being convicted of aggravated robbery and kidnapping on June 19,1984 Roger Steven Shuffield replaced his appointed counsel, Mr. Paul K. Lancaster, with retained counsel, Mr. Ron Heller. Notice of appeal was filed and on February 4,1985 Heller tendered the record to the clerk of this court for filing. Since more than seven months had expired the clerk properly refused to file the record. See Arkansas Rules of Appellate Procedure Rule 5.\nNothing material occurred thereafter until September 12, 1985 when Heller filed a Rule 37 petition in the trial court alleging ineffective assistance of trial counsel. On October 21 a hearing was held during which Heller represented to the trial court that he had filed a motion for a rule on the clerk of the Supreme Court. On that representation the trial court set an appeal bond and Shuffield was released pending the appeal.\nSome eight months later the state moved for a revocation of Shuffield\u2019s appeal bond alleging that no motion for a rule on the clerk had been filed. At a hearing on revocation Heller conceded that he had never filed a motion for a rule on the clerk. Shuffield\u2019s bond was revoked and Heller was found to be in contempt of court and fined $50.\nAt this point Shuffield retained new counsel and on August 20,1986 a second Rule 37 petition was filed charging ineffective assistance by Ron Heller in the handling of Shuffield\u2019s appeal. The motion was denied on October 20 and this appeal followed. Shuffield also filed in this court a motion for a belated appeal on March 27, 1987.\nNeither the motion for a belated appeal nor the Rule 37 petition are cognizable. The filing of a motion for belated appeal is limited to eighteen months from the date of commitment. A.R.Cr.P. Rule 36.9. This record does not give us the exact date of the commitment but since Shuffield was not released on an appeal bond until the October 21,1985 hearing he was doubtless committed following his conviction. Nor may Rule 37 be used to revive an appeal that is out of time. In Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985) we addressed this issue squarely:\n[Lomax] was committed in February, 1982, and therefore could have filed a motion for belated appeal in this court at any time between that date and August, 1983, which was eighteen months after date of commitment. Rule 36.9. He did not file such a motion. Instead, [Lomax] raised the question of whether counsel was ineffective for failure to appeal in his Rule 37 petition, filed April 11, 1984. Rule 37, however, is not a means of by-passing a motion for belated appeal. If it were construed to be so, an appellant could simply ignore the rule limiting the time for filing a motion for belated appeal in favor of filing a Rule 37 petition which may be filed at any time up to three years from the date of commitment. See Rule 37.2(c). (Our italics).\nIt is clear that Shuffield sought to appeal his conviction and that he retained counsel in timely fashion to process the appeal. Through no fault of his own the appeal was permitted to lapse by the failure of Mr. Heller to tender the record within the seven months allowed for lodging the record on appeal. Gibson v. State, 272 Ark. 345, 614 S.W.2d 234 (1981).\nThere is, however, a solution available to remedy these omissions, i.e. a motion for a rule on the clerk under Rule 5, Rules of the Supreme Court and Court of Appeals, based on an admission by counsel that the failure to lodge the record after the notice of appeal was filed was due to his own neglect. That procedure has been established and frequently followed since Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978), and In Re: Belated Appeals in Criminal Cases, Per Curiam, February 5, 1979, 265 Ark. 964. Where counsel assumes responsibility the motion for a rule on the clerk is granted routinely. Where counsel fails to accept responsibility, but it is plain from the record where the fault lies, we have granted the rule on the clerk upon a finding that counsel\u2019s neglect was the occasion for the failure to tender the record in a timely manner. In both instances the Committee on Professional Conduct is informed of the occurrence.\nIn this case it is evident that the failure to bring a timely appeal was the fault of Attorney Ron Heller. Under these circumstances the motion for belated appeal is treated as a motion for a rule on the clerk to lodge the record on appeal. The motion is granted and a copy of this opinion is referred to the Supreme Court Committee on Professional Conduct.\nMotion granted.",
        "type": "majority",
        "author": "Steele Hays, Justice."
      }
    ],
    "attorneys": [
      "Wilson, Engstrom, Corum & Dudley, by: Wm. R. Wilson, Jr., and Timothy O. Dudley, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Robert A. Ginnaven, III, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Roger Stephen SHUFFIELD v. STATE of Arkansas\nCR 87-19\n729 S.W.2d 11\nSupreme Court of Arkansas\nOpinion delivered May 11, 1987\nWilson, Engstrom, Corum & Dudley, by: Wm. R. Wilson, Jr., and Timothy O. Dudley, for appellant.\nSteve Clark, Att\u2019y Gen., by: Robert A. Ginnaven, III, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0185-01",
  "first_page_order": 211,
  "last_page_order": 214
}