¶1concurring. Two weeks ago, this court dismissed the State’s appeal because its attorney was 89 days late in filing a brief. That dismissal resulted in two defendants’ 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).
¶2Today 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’s attorney was given 105 days, plus 60 more days after a final extension, this court voiced no intention of dismissing Bowden’s appeal. In fact, after these 165 days passed, we issued a show cause order and allowed Bowden’s 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’s appeal.
¶3This court attempts to shield itself from justifiable criticism by saying a defendant’s Sixth Amendment right to counsel is the reason why a defendant’s appeal cannot be dismissed, but a state’s 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’s error.
¶4The court’s expressed justification for treating State and defendant criminal appeals differently would be funny if it did not have such grave consequences. The court’s per curiam ignores two glaring principles.
¶5One, this court over the years has consistendy applied the same rule to all appeals, both state and defendant — 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’s 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’s reference to a defendant’s right to effective counsel in no way answers this question.
¶6The second principle this court has applied when a defendant’s or state’s 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’s attorney in the Tien case? The court’s per curiam in no way tries to justify its failure on this point, and I submit there is none.
¶7This court’s unfair, disparate treatment in dismissing the public’s case for the mistake of a State’s attorney, but refusing to dismiss and affirm a defendant’s appeal for his attorney’s repeated tardiness, only fosters distrust and a lack of confidence in our judicial system. This court’s 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’s. Until Tien, this court adhered to a fairness principle when deciding state and defendant appeals, but has abandoned it for no expressed reason.
¶8In the Tien case, I dissented and pointed out the fact I reiterate now — this court has never dismissed a criminal appeal (the State’s or defendant’s) because an attorney filed a late brief. I listed twenty-three defendants’ 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’s attorney was more than 100 days late with his or her brief. This court appropriately never dismissed (or even considered dismissing) a defendant’s appeal for an attorney’s tardiness. Again, nor has the court ever dismissed a state’s appeal for that reason.
¶9When a State’s attorney errs, this court has available to it the same sanctions and discretion it exercises in a defendant’s 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’s 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’s decision to do so punishes the Attorney General’s Office, and more importandy, the people of this state.
¶10This court’s decision in Tien is fundamentally wrong, and it poisons the very core of our court’s criminal appellate rules whose object is to provide equal justice for all parties — even the State. Significantly, this court’s 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.
¶11This 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’s 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’s tardiness.
¶12Finally, 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— an opportunity this court has extended even the worst offending defendant’s attorney, such as Bowden’s in the present case. I am embarrassed for this court’s 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.