¶1concurring. I concur in the decision to grant the State’s motion to dismiss this appeal and join in all but the next-to-last paragraph of the per curiam opinion. I do not agree with that part of the opinion that states that the rules of appellate procedure are ambiguous, and I believe that the paragraph in question, expressing a view previously rejected by a majority of the court that drafted the rules, has no place in an opinion speaking for this court.
¶2JENNINGS, C.J., and Rogers, J., join in this concurrence.
¶3 It should be noted that the rules were amended after Nance v. Stale, 318 Ark. 758, 891 S.W.2d 26 (1994), cited by the majority, and before the judgment of conviction in this case, see Ark. R. App. P. — Crim. 2, but the changes do not affect the issue presented by this motion.
¶4dissenting. The State has filed a motion to dismiss this appeal on the basis that the notice of appeal was not timely filed. The motion was served on appellant’s attorney, and he has filed no response to it.
¶5According to the State’s motion, the appellant was convicted of second-degree murder and sentenced to 240 months by a judgment and order of commitment entered on February 5, 1996. He filed a motion for new trial on March 6, 1996, and the court held a hearing on April 1, 1996, at which he denied the motion but no written order has been entered to reflect that action.
¶6On April 4, 1996, the appellant filed a notice of appeal from his “conviction and sentence rendered by the Court on April 1, 1996,” and the record was subsequendy filed in the Arkansas Court of Appeals.
¶7The State’s motion to dismiss contends that the notice of appeal was not effective to appeal the judgment of conviction because it was not filed within thirty (30) days after the judgment of conviction was entered as required under Rules of Appellate Procedure — Crim. 2(a)(1), and it was not effective to appeal the denial of new trial because it was filed before the motion was deemed denied and before a written order was entered denying the motion. The cases of Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994), Tanner v. State, 318 Ark. 888, 887 S.W.2d 311 (1994), and Schaeffer v. City of Russellville, 52 Ark. App. 184, 916 S.W.2d 134 (1996), are cited to support the contention that the notice of appeal was not effective to appeal the denial of the motion for new trial.
¶8If this matter is as clear as the State’s motion contends, we should dismiss the appeal. However, as the cases of Nance and Tanner hold, the appellant’s attorney can file a motion for a rule on the clerk to file the appeal which may be granted if the attorney will accept full responsibility for not timely filing the notice of appeal. However, under Rule 1-2 (a) (10) of the Rules of the Supreme Court and Court of Appeals, a motion for rule on the clerk may have to be filed in the Supreme Court.
¶9The 1996 Rules of Appellate Procedure — Crim. 2(e) provides that the “Supreme Court may act upon and decide a case in which the notice of appeal was not given ... in the time prescribed, when a good reason for the omission is shown by affidavit.” This rule was originally made by a per curiam issued on February 5, 1979. See 265 Ark. 964. In Smith v. State, 325 Ark. 34, 921 S.W.2d 953 (1996), the court treated a motion for a rule on the clerk as a motion for a belated appeal under what is now Appellate Procedure —Crim. Rule 2(e). Since the record is filed in the instant case, a motion for belated appeal rather than for a rule on the clerk would seem to be the proper motion.
¶10In sum, I would agree to certify this case to the Arkansas Supreme Court, but I dissent to dismissing the appeal.