dissenting. Our procedures are defective when we make a sweeping rule change in an opinion and expect compliance from lawyers before any possibility of notice of that change has gotten out to the legal community. The effect is akin to mandating compliance with a rule before its promulgation.
In this case, Tucker was convicted on July 21,1992. He filed his notice of appeal two days later on July 23, 1992. Judgment was not entered, however, until July 24, 1992. Eleven days prior to entry of judgment, we held in an unrelated case that this violated Appellate Rule 4 because the notice of appeal was filed before entry of judgment. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).
Kelly, however, was a civil case which overruled a criminal case, State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991), on this point. Thus, the import of Kelly was that it interpreted an appellate rule to apply to criminal appeals when we had not done so as recently as nine months previously in Joshua.
The Kelly decision had not had time to appear in the Arkansas Advance Reports when the Tucker facts occurred, because the Tucker notice of appeal and judgment took place within ten or eleven days of that decision. In sum, we made a significant change in appellate procedure affecting criminal appeals. We did so in a civil case. And there was no notice of change to the bar at the time of the Tucker facts.
Now in this per curiam order, we apply a Band-Aid solution and say that we will treat this motion for rule on the clerk as a motion for belated appeal even though no affidavit of good reason accompanied the motion as required by Ark. R. Crim. P. 36.9. What we should do with a major rule change — even one embodied in an opinion such as in Kelly — is publish a per curiam order with an effective date for the rule so that notice is assured to be given to the bar and attorney error thereafter has some basis in reality.
I would grant the motion for rule on the clerk.
Holt, C.J., joins.