dissenting. This court, sitting en banc, has denied a motion for the payment of an attorney’s fee for representation of the appellant in this appeal, presumably in rebanee on the decision of the Arkansas Supreme Court in Rushing v. State, 340 Ark. 84, 8 S.W.3rd 489 (2000). I respectfully dissent from this court’s denial of the motion because I do not believe we are precluded by the Rushing decision from awarding a fee in this case.
Rushing prohibits the award of a fee to salaried public defenders who are appointed to represent indigents on appeal. This is not what has occurred in the case at bar. In this case, appellant was represented by the salaried public defender at trial. After filing a notice of appeal, all services in connection with the appeal to this court have been performed by Stark Ligón, who is neither a full- or part-time public defender. In his motion, the full-time public defender, G.B. “Bing” Colvin, III, acknowledges that no part of the fee awarded by this court will be compensation to him, and that the entire amount of the fee will be paid in full to Mr. Ligón. Furthermore, Rushing only prohibits the payment of additional compensation to salaried public defenders for services rendered by them on appeal. Under the circumstances present here, the public defender will receive no additional compensation.
I do not believe that payment of compensation that will inure only to the benefit of Mr. Ligón would violate the Regular Salary Procedures and Restrictions Act, Act 1379 of 1999, § 1; Ark. Code Ann. §§ 19-4-1601 — 1615, and, under these circumstances, I would award a fee. I believe that our obligation to do so is even more compelling where, as here, Ligón performed the services on appeal in reliance on this court’s practice before the Rushing decision.
Hart, J., joins in this dissent.