{ "id": 12021902, "name": "Lamont BOWDEN v. STATE of Arkansas", "name_abbreviation": "Bowden v. State", "decision_date": "1996-10-14", "docket_number": "CR 95-1258", "first_page": "266", "last_page": "270", "citations": [ { "type": "official", "cite": "326 Ark. 266" }, { "type": "parallel", "cite": "931 S.W.2d 104" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "325 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369130 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0035-01" ] }, { "cite": "875 S.W.2d 836", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1443744, 1443853 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0042-01", "/ark/317/0045-01" ] }, { "cite": "317 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443744 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0042-01" ] }, { "cite": "265 Ark. 964", "category": "reporters:state", "reporter": "Ark.", "year": 1979, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1 }, { "cite": "613 S.W.2d 90", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1174872, 1174882 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0203-01", "/ark/272/0243-01" ] }, { "cite": "272 Ark. 243", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174882 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0243-01" ] }, { "cite": "326 Ark. 71", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020582 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/326/0071-01" ] } ], "analysis": { "cardinality": 543, "char_count": 10008, "ocr_confidence": 0.821, "pagerank": { "raw": 2.340532233178225e-07, "percentile": 0.792119347498638 }, "sha256": "619fa4de2fe088e59a107d283c73bcdd0d6e460d5aee705f7331104125861a81", "simhash": "1:3664e6c0522a420b", "word_count": 1672 }, "last_updated": "2023-07-14T22:12:03.555215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J. concurs." ], "parties": [ "Lamont BOWDEN v. STATE of Arkansas" ], "opinions": [ { "text": "Per Curiam.\nOn June 21, 1996, we issued a show-cause order to the appellant\u2019s counsel for failure to file the appellant\u2019s brief after having been granted four extensions totaling 104 days. The appellant\u2019s brief was tendered on June 28, 1996. However, his counsel was given seven days to correct this brief. A brief containing sixteen pages of abstract and three pages of argument was ultimately filed on July 9, 1996.\nOn August 6, 1996, the State filed a Motion to Direct Compliance with Rule 4-3 (h) because the appellant\u2019s counsel had only abstracted the parts of the record which pertained to the one issue he raised on appeal. Because the appellant was sentenced to life without parole, Rule 4-3 (h) requires that the appellant abstract all rulings adverse to him. On September 9, 1996, this court granted the State\u2019s motion and allowed the appellant until September 29, 1996 to file a brief in compliance with Rule 4-3 (h).\nHowever, also on September 9, 1996, appellant\u2019s counsel filed two additional motions which are now before this court, a motion to amend brief, and a motion to supplement the record. In his motion to supplement the record, appellant\u2019s counsel asserts that the omnibus hearing was not transcribed and is not a part of the record, and asks that the court reporter be ordered to prepare a transcript of this hearing. In the motion to amend his brief, he requests that he be allowed to supplement his brief with an abstract of this hearing. As it will be necessary for the omnibus hearing to be transcribed if the appellant is to comply with Rule 4-3 (h), we grant the motions.\nThe court reporter is directed to complete the record as requested within thirty days of this opinion, and appellant\u2019s amended brief shall be due seven days thereafter.\nAlthough the concurring justice has taken issue with this court\u2019s dismissal of the State\u2019s appeal in a previous and unrelated case, we do not need to belabor the obvious. There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the state. The former is a matter of right, and to cut off a defendant\u2019s right to appeal because of his attorney\u2019s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. See Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); Ark. R. App. P. \u2014 Crim. 1. The latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to our rules. See Ark. R. App. P. \u2014 Crim. 3.\nWe further gave the State fair notice in State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996) which was handed down on June 3, 1996:\nHenceforth, we will not entertain appeals by the State when the State\u2019s brief is not filed in accordance with the specific deadline in the final extension granted by this Court.\nGlaze, J. concurs.", "type": "majority", "author": "Per Curiam." }, { "text": "Tom GLAZE, Justice,\nconcurring. Two weeks ago, this court dismissed the State\u2019s appeal because its attorney was 89 days late in filing a brief. That dismissal resulted in two defendants\u2019 confessions being suppressed at a murder trial without this court determining the legality of suppressing those confessions. See State v. Tien, 326 Ark. 71, 929 S.W.2d 155 (1996).\nToday we have the flip-side of the Tien case. Here the defendant Bowden, convicted of murder, has appealed, but his attorney has not, as yet, filed a correct or proper brief even though 249 days have passed since his first brief was due. Even though Bowden\u2019s attorney was given 105 days, plus 60 more days after a final extension, this court voiced no intention of dismissing Bowden\u2019s appeal. In fact, after these 165 days passed, we issued a show cause order and allowed Bowden\u2019s attorney to come before us to give his excuse for being late. After hearing his story, this court permitted the attorney to continue on the case. Now, as previously mentioned, 249 days have passed, but this court has given no thought or consideration (nor should it) to dismissing defendant Bowden\u2019s appeal.\nThis court attempts to shield itself from justifiable criticism by saying a defendant\u2019s Sixth Amendment right to counsel is the reason why a defendant\u2019s appeal cannot be dismissed, but a state\u2019s appeal can. It suggests that, because the State has no constitutional right to have its appeal heard, its appeals may be dismissed for its attorney\u2019s error.\nThe court\u2019s expressed justification for treating State and defendant criminal appeals differently would be funny if it did not have such grave consequences. The court\u2019s per curiam ignores two glaring principles.\nOne, this court over the years has consistendy applied the same rule to all appeals, both state and defendant \u2014 it has never dismissed a criminal appeal because an attorney failed to file a timely brief. Simply put, this court, aside from any Sixth Amendment differences, has always treated state and defendant criminal appeals the same. In other words, the court\u2019s decision to treat all appeals the same is case-precedential, not constitutional. The real question is why did this court in Tien choose to depart from its longstanding precedent by deciding to dismiss a state criminal appeal? The majority court\u2019s reference to a defendant\u2019s right to effective counsel in no way answers this question.\nThe second principle this court has applied when a defendant\u2019s or state\u2019s counsel erred in filing an untimely brief is the court would invite or order the attorney to proffer his or her reason for being late. Again, why did the court not extend that courtesy to the State\u2019s attorney in the Tien case? The court\u2019s per curiam in no way tries to justify its failure on this point, and I submit there is none.\nThis court\u2019s unfair, disparate treatment in dismissing the public\u2019s case for the mistake of a State\u2019s attorney, but refusing to dismiss and affirm a defendant\u2019s appeal for his attorney\u2019s repeated tardiness, only fosters distrust and a lack of confidence in our judicial system. This court\u2019s uneven application of its criminal appellate rules and its exercise of discretion is incredibly punitive. In short, it punishes the people of this state by denying them the fairness of having their cases procedurally heard on appeal and decided in the same manner as a defendant\u2019s. Until Tien, this court adhered to a fairness principle when deciding state and defendant appeals, but has abandoned it for no expressed reason.\nIn the Tien case, I dissented and pointed out the fact I reiterate now \u2014 this court has never dismissed a criminal appeal (the State\u2019s or defendant\u2019s) because an attorney filed a late brief. I listed twenty-three defendants\u2019 appeals in this court in 1994 and 1995 where we granted further extensions after this court had previously established a final extension date. Eighteen (18) of those appeals involved situations where a defendant\u2019s attorney was more than 100 days late with his or her brief. This court appropriately never dismissed (or even considered dismissing) a defendant\u2019s appeal for an attorney\u2019s tardiness. Again, nor has the court ever dismissed a state\u2019s appeal for that reason.\nWhen a State\u2019s attorney errs, this court has available to it the same sanctions and discretion it exercises in a defendant\u2019s appeal when his or her attorney errs. The court can remove the attorney, have the attorney appear before it to give a reason why he or she missed filing deadlines and send the attorney\u2019s name to the Professional Conduct Committee. This court has routinely followed these procedures and sanctions in past appeals. Once again, why it now chooses to abandon these longstanding procedures and precedents in only State appeals puzzles me; but as already noted, the court\u2019s decision to do so punishes the Attorney General\u2019s Office, and more importandy, the people of this state.\nThis court\u2019s decision in Tien is fundamentally wrong, and it poisons the very core of our court\u2019s criminal appellate rules whose object is to provide equal justice for all parties \u2014 even the State. Significantly, this court\u2019s criminal appellate rules nowhere provide for the dismissal of a criminal case for the failure to file a brief, although such dismissal may be granted in civil cases. I submit that our criminal appellate rules do not provide for dismissals in such circumstances because the court never contemplated dismissing criminal appeals for such reasons.\nThis court should overrule its decision in Tien, return to our rules and case law precedent and allow all criminal appeals to come to a conclusion, even if an attorney files a late record or brief. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, even though Bowden\u2019s attorney is 249 days late, this court is correct in allowing him to supplement his record and file a corrected brief. In any event, his case should not be dismissed because of his attorney\u2019s tardiness.\nFinally, I must add that the deputy attorney general, who erred in Tien, has an otherwise excellent reputation for filing well-researched and well-written briefs for the State. That reputation has been recognized at one time or another by every member of this court. His failure to perform in the Tien appeal was not at all consistent with his past outstanding performances. Nonetheless, this court never gave this deputy attorney general an opportunity to explain why he had failed to file a timely brief\u2014 an opportunity this court has extended even the worst offending defendant\u2019s attorney, such as Bowden\u2019s in the present case. I am embarrassed for this court\u2019s failure to extend that courtesy to the deputy attorney general in Tien. Perhaps this court could in some manner offer recompense by reversing itself in Tien and own up to its own mistakes.", "type": "concurrence", "author": "Tom GLAZE, Justice," } ], "attorneys": [ "Ronald Carey Nichols, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Vada Berger, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lamont BOWDEN v. STATE of Arkansas\nCR 95-1258\n931 S.W.2d 104\nSupreme Court of Arkansas\nOpinion delivered October 14, 1996\nRonald Carey Nichols, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Vada Berger, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0266-01", "first_page_order": 300, "last_page_order": 304 }