rehearing">

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

Per Curiam.

On May 13,1991, we handed down an opinion dismissing the State’s appeal in this case because the transcript was not filed within the sixty (60) day period as required by A.R.Cr.P. Rule 36.10(c).

The State’s notice of appeal was filed on July 2,1990, and the transcript should have been filed on or before 5 p.m. on Friday, August 31. The file marks reflect that it was not filed until Wednesday, September 5, 1990.

The Attorney General has filed a petition for rehearing in which he makes the following alternative allegations:

(a) The transcript was, in fact, tendered to the clerk before 5:00 p.m. on Friday, August 31, and the clerk made a mistake in affixing the filing date of September 5.

(b) Even if the transcript was not tendered before 5:00 p.m. on Friday, August 31, it was tendered before 8:00 a.m. on Tuesday, September 4 and should have been back-dated to Friday, August 31. (The clerk’s office was closed Monday September 3, which was Labor Day.) The State contends “that it has been a long standing practice of the Office of the Supreme Court Clerk to file-mark all transcripts, pleadings, and briefs present on the Clerk’s desk in the morning when the clerk’s office officially opens with a file-mark of the previous business date.”

It is necessary for a hearing to be held to determine whether either allegation is true. We appoint the Honorable Bruce T. Bullion as Master to conduct the hearing. The Master is to presume the affixed filing date is correct, and the Attorney General will have the burden of proving, by a preponderance of the evidence, either allegation. Upon receiving a finding of fact form the Master, we will make a decision on the State’s Petition for Rehearing. In the meanwhile, the mandate in this case will be held in abeyance.

Newbern, J. not participating.816 S.W.2d 889OCTOBER 28, 1991Winston Bryant, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for petitioner.Gene McKissic, for appellee.

Citation profile

Relationships

How this case has been treated — in progress