Category: Arkansas Criminal Appeals

Insight Into Binding the Appellant’s Addendum

~ Andy Taylor ~ 1 Comment

A few weeks ago, I argued a case before the Arkansas Court of Appeals.  The biggest insight I gained was actually with respect to a judge’s comment concerning our Addendum in that case.  Before asking his first question, Judge Price Marshall complimented me for binding the Addendum separately from the remainder of the brief.  We typically bind Addenda separately from briefs when the Addenda are fairly large.  Judge Marshall said that he appreciated it because it made it easier to refer to the Addendum while reading the brief.

A few caveats.  First, this was a very big Addendum (approximately 400 pages), and our argument in this case relied heavily on the documents included in the Addendum.  In cases where the Addendum is extremely small, I still intend to bind the Addendum with the brief.  Second, while the Addendum may be bound separately, the abstract must be bound in the same volume as the brief unless the abstract exceeds 250 pages. See Ark. Sup. Ct. R. 4-2(a)(5)(C)(ii).  Third, I recognize that this was the opinion of one of twelve judges on the Court of Appeals, and I am not intending to suggest that he necessarily was speaking for the entire Court.

The Court’s rules concerning the Addendum to an Appellant’s brief can be found at Arkansas Supreme Court Rule 4-2(a)(8).

Appellate Court Rule Changes Effective January 1, 2010

~ Tasha C. Taylor ~ 3 Comments

The Arkansas Supreme Court handed down a per curiam decision on October 29, 2009, that makes several changes to various Arkansas Supreme Court Rules.  Two  significant changes include: (1) the change in the font size for appellate briefs to 14 points and (2) the change in the page length for opening briefs to 30 pages.  Note that there is no change to the limit of 15 pages for an appellant’s reply brief.

Justice Danielson, concurring in the per curiam decision, expresses his hope that the enforcement of the Court’s rules is made a high priority.

View the per curiam here to read the  full text of the new Arkansas Supreme Court Rules rules that take effect January 1, 2010.

Legislative Changes to Appellate Court Filing Fees are Effective July 1, 2009

~ Tasha C. Taylor

The Arkansas Supreme Court posted a reminder yesterday that the “Court Technology Improvement Act of 2009” (ACT 328 (HB 1353)) will go into effect next week, on July 1, 2009.

Pursuant to the Act, the Supreme Court Clerk is permitted to charge the following fees:

• A fee of $150.00 for a certified question from a federal court;

• A fee of $25.00 for each petition for rehearing filed;

• A “court technology fee” of $15.00 for every civil action or misdemeanor case filed in either the Court of Appeals or the Supreme Court.

• The Clerk of the Supreme Court shall be paid by the appellant a fee of $150.00 in all civil actions and misdemeanor cases.

• The $150.00 filing fee and the $15.00 “court technology fee” shall be remitted in one sum of $165.00.

• These fees go into effect on July 1, 2009.

Arkansas Supreme Court Proposes Rule Changes as Possible Solution to Brief Deficiencies

~ Tasha C. Taylor ~ 2 Comments

The per curiam handed down by the Arkansas Supreme Court on June 4, 2009—In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2–voices the Court’s frustration with deficiencies in appellate briefs that have been filed over the past few years:

Two years ago, this court highlighted problems relating to attorneys’ failure to comply with the rules for appellate briefs. In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007). Our warning apparently went unheeded. We continue to have to order rebriefing. In the 2006-07 court term, we ordered rebriefing in eleven cases, in the 2007-08 term, nine, and thus far in the current term, nineteen. In an attempt to aid appellate attorneys, we asked our Committee on Civil Practice to review Supreme Court and Court of Appeals Rule 4-2, which governs the contents of briefs, abstracts and addendums, and to submit a special and expedited report suggesting amendments to the rule.

The Committee has discharged its assignment. We have reviewed the Committee’s work and have made some revisions of our own. . . . 

The Court’s proposed changes to Rules 4-1 and 4-2 include the following:

  • A change to the font size for briefs from 12 points to 13 points;
  • More guidance concerning the content of abstracts;
  • Requirement that a court reporter “shall provide the appellant at a nominal charge an electronic copy of the transcript;”
  • More guidance concerning the contents of addendums;
  • Requirement that brief covers must now include the facsimile numbers and e-mail addresses of the attorneys preparing the briefs.

Perhaps the most significant changes are those proposed rule changes concerning brief deficiencies.

In its 2007 per curiam decision, In re Appellate Practice Concerning Defective Briefs, the Court warned that it might return to its former rule of affirmance based on deficient briefs:

Six years ago, this court amended its Supreme Court Rules to eliminate the harshness of an affirmance based on deficient appellate briefs. With this current raft of nonconforming briefs, and the time wasted and expense incurred, this court may be forced in the near future to return to its former rule of affirmance.

The Court’s 2009 per curiam proposes the following addition to Rule 4-2: “When an abstract or addendum is insufficient, the appellate court shall not go to the record to affirm or reverse the trial court’s decision.” In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

The Court’s proposed rules provide for sanctions for attorneys who have been given the opportunity to cure deficiencies, but fail to do so: 

(c) Noncompliance. (1) Briefs not in compliance with the format required in Rules 4-1 and 4-2 shall not be accepted for filing by the Clerk. When a party submits a noncompliant brief on time that substantially complies with the these Rrules governing briefs, the Clerk shall mark the brief “tendered,” grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.   

(2) If after a brief has been accepted for filing, it is determined that an appellee’s brief is deficient or an appellant’s brief is deficient in areas not addressed in Rule 4-2(b)(3), the court may give the party fifteen days to cure the noncompliance under the procedure described in Rule 4-2 (b)(3). If the problem is not timely corrected, then the court will take appropriate action, including affirming the judgment or decree at cost to the appellant, or otherwise giving judgment according to the requirements of the case.

(3) After the opportunity to cure deficiencies has been afforded pursuant to Rule 4-2(b)(3) or (c)(2), attorneys who fail to comply with the requirements of this rule shall be referred to the Office of Professional Conduct, and in addition, may be subject to any of the following: (A) contempt, (B) suspension of the privilege to practice before the Supreme Court or Court of Appeals for a specified time or until the attorney can demonstrate a satisfactory competency of the rules, or (C) imposition of any of the sanctions listed in Rule 11(c) of the Rules of Appellate Procedure-Civil.

In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2, (June 4, 2009) (emphasis added).

For a complete list of proposed changes to Rules 4-1 and 4-2, view the Court’s June 4, 2009 per curiam–In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

Anyone wishing to comment on the suggested rule changes must submit your comments before August 1, 2009 to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.

Rule 5-2 Rewritten: (1) Arkansas Becomes First State with Electronic Official Reports; (2) Court Abandons Use of “Unpublished” Decisions

~ Tasha C. Taylor ~ 2 Comments

In today’s per curiam (dated May 28, 2009), the Arkansas Supreme Court announces two significant changes to appellate practice in Arkansas with the adoption of the Court’s new Rule 5-2.

(1) Arkansas Becomes First State with Electronic Official Reports
First, “effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official report of those decisions.”  With this decision, Arkansas will become “the first state in the nation to publish and distribute the official report of its appellate decisions electronically.”  

When the Court launches the new format for its official reports this summer, the searchable database maintained by the Reporter of Decisions will include all opinions issued after February 14, 2009, which is the closing date for the final volumes of the Arkansas Reports and the Arkansas Appellate Reports (375 Ark./104 Ark. App.).  Arkansas Supreme Court Rule 5-2 has been rewritten to reflect these changes.

(2) Court Abandons Use of “Unpublished” Decisions
Second, the Court’s change to Rule 5-2 “abandons the distinction between published and unpublished opinions and makes every Supreme Court and Court of Appeals opinion issued after July 1, 2009, precedent.”

In adopting this change, the Court notes that the General Assembly had expressed its view on this matter in Act 162 of 2009.  For a discussion of the effects of the passage of Act 162 of 2009 earlier this year, see Arkansas General Assembly Revives Anastasoff Controversy–Pondering the Effect of Act 162.

For more about today’s per curiam and Act 162, view Rep. Steve Harrelson’s May 28, 2009 blog post at www.underthedome.com.

Appellate Court Rule Changes for Criminal Appeals–Effective October 1, 2008

~ Tasha C. Taylor ~ Leave a comment

The Arkansas Supreme Court handed down a per curiam decision today (September 18, 2008), that will result in changes to the following three rules, effective October 1, 2008: (1) Rule 4-3 of the Rules of the Supreme Court and Court of Appeals; (2) Rule 4 of the Arkansas Rules of Appellate Procedure-Criminal; and (3) Rule 24.3 of the Rules of Criminal Procedure.

Changes to Ark. Sup. Ct.R. 4-3–Briefs in Criminal Cases: The addition of subsection (f) provides that briefs containing “photographs, DVDs, or any other visual medium” that is alleged by either party to be child pornography must be sealed.  It is the responsibility of counsel on appeal to file a motion to seal the brief that must accompany the brief when it is filed with the Clerk of the Court.  Subsection (f) also prohibits anyone other than the court, its personnel, and the attorneys of record from receiving a copy of the brief that contains the materials to be sealed.

* The addition of subsection (f) resulted in the renumbering of the subsequent subsections–this means that the Court’s review of errors in death or life imprisonment cases will now be referred to as a Rule 4-3(i) review rather than a 4-3(h) review.

Changes to Ark. R. App. P.–Crim. R. 4–Time for filing record, contents of record: Three subsections have been added to this rule–(b), (c), (f).  Subsections (b) and (c) provide a method for obtaining an extension of time to file a record in a criminal appeal.  This method now allows a circuit court to grant a motion by a Defendant/Appellant who requests an extension to file the record where both sides consent to the extension.  Pursuant to subsection (f), the same extension is not so easily obtained where the state is the Appellant, as subsection (f) provides that subsections (b) and (c) don’t apply to an appeal by the state.

Change to Ark. R. Crim. P. 24.3–Pleading by the Defendant: The only change here is the addition of a new Conditional Plea Form for use with Rule 24.3(b).