SUPREME COURT OF ARKANSAS
MICHAEL JUSTIN DRAKE,
STATE OF ARKANSAS,
Opinion Delivered January 17, 2008
MOTION FOR RULE ON CLERK
Appellant Michael Justin Drake, by and through his attorney, has filed a motion for
rule on the court, which we will treat as a motion for rule on the clerk. His attorney, Robert
R. Cortinez, Sr., states in the motion that, due to a mistake in his part, the order granting a
motion for an extension of time to file the record fails to comply with the requirements of
Ark. R. App. P. –Civ. 5 (2007).
This court clarified its treatment of motions for rule on clerk and motions for belated
appeals inMcDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated that
there are only two possible reasons for an appeal not being timely perfected: either the party
or attorney filing the appeal is at fault, or there is “good reason.” Id. at 116, 146 S.W.3d at
891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Cortinez has candidly ad