concurring. I concur in the majority’s conclusion that the motion for rule on the clerk should be denied because the record was not filed in this court on appeal within seven months from the date the judgment was entered. However, I cannot agree with the precedent set by the majority which holds that Rule 36.22, A.R.Cr.P., and Rule 4, Rules of Appellate Procedure, do not extend the effective date of the judgment for purposes of appeal.
Rule 5, Rules of Appellate Procedure, provides that the trial court cannot extend the time for filing the record on appeal for more than seven months after entry of the judgment.
Rule 4 (a), Rules of Appellate Procedure, provides that notice of appeal shall be filed within 30 days from the entry of the judgment. However, under Rule 4 (c) the time for filing notice of appeal can be extended almost indefinitely when certain post-trial motions are pending.
In interpreting Rule 5, the majority has failed to take into account Rule 4 (c). Because of this today’s decision results in an anomaly. Rule 5 can now require that the record on appeal be filed in this court before Rule 4 (c) requires a notice of appeal to be filed in the trial court.
The following dates are significant to an understanding of the case:
March 8, 1982 Judgment of conviction was filed of record.
April 5, 1982 Motion for new trial was filed by appellant.
May 5, 1982 Motion for new trial denied per Rule 4 (c), Rules of Appellate Procedure.
September 1, 1982 Motion for new trial denied by court order.
September 28, 1982 Notice of appeal filed.
March 21, 1983 Appellant tendered record to supreme court clerk.
I would deny the motion for rule on the clerk because the record on appeal was not filed within seven months from the effective date of the judgment. My difference with the majority is the effective date of the judgment. The majority states that the effective date of the judgment is when it was first entered on March 8, 1982.1 believe the effective date of the judgment is as extended by Rule 36.22, A.R.Cr.P., and Rule 4, Rules of Appellate Procedure. In this case the effective date of the judgment was 30 days after the motion for new trial was filed since there is no indication in the record that appellant requested the court to take the matter under adyisement or to set a definite time for a hearing on the motion as is required by our decision in Coking Coal, Inc., et al. v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983):
Under Rule 4 (c) the party filing a motion for new trial must present the motion to the court within 30 days, and if the matter cannot be heard within the 30 days the movant must, within those 30 days, request the court to take the matter under advisement or to set a definite date for a hearing. If the court does neither, the motion is deemed to be denied at the expiration of 30 days after its filing... Under Rule 4 (d), if the motion is denied by the court or is deemed to have been disposed of, a party desiring to appeal has 10 days from the entry of the order or from the date of the presumed disposition of the motion to file notice of appeal. . . .
It should be noted that in criminal cases the time for filing a notice of appeal does not expire until 30 days after a motion for new trial is considered denied as compared to ten days for other cases as per Rule 4 (d). See Rule 36.22, A.R.Cr.P., which provides: “[T]he time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications [for a new trial].”
No consideration on appeal has been given to the affidavit filed by the appellant’s attorney in support of his motion for rule on the clerk. This affidavit attempts to establish that the attorney requested the court to set a hearing on the motion for new trial within 30 days after its filing and that the trial court took this motion under advisement. By filing this affidavit appellant’s attorney has attempted to fall within the rule set out by this court in Coking Coal, Inc., supra. However, the matter contained in the affidavit must be established by the record made in the trial court, not by an affidavit filed for the first time in this court.