dissenting. The majority in this case denies appellant Fred H. Coggins’s petition for writ of certiorari to complete the record, which has the effect of causing his appeal to be dismissed. The majority does so on the basis that because seven months had not expired from entry of judgment, this court had no authority under Ark. R. App. P.— Civ. 5 to grant the motion. I disagree because I am convinced that this court can grant an extension of time for completion of the record prior to the expiration of seven months, if an appellant files a partial record with our clerk and requests relief within ninety days from the time the notice of appeal was filed or within a period of extended time. For that reason, I dissent.
Rule 5 dealing with extensions of time reads as follows:
(a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided. When, however, an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days horn the entry of such order.
(b) (2) In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment or order, or from the date on which a timely postjudgment motion is deemed to have been disposed of under Rule 4(b)(1), whichever is later.
(3) If the appellant is unable to obtain entry of an order of extension before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, the appellant may file with the clerk of the Supreme Court a petition for writ of certiorari pursuant to Rule 3-5 of the Rules of the Supreme Court and Court of Appeals, (emphasis added).
Our Supreme Court Rule 3-5 reads:
(a) Authorization for writ of certiorari. When jurisdiction is conferred by .filing, within the time allowed for appeal, a dated and certified copy of the order or judgment appealed from, the Clerk may, upon authorization by the Court, issue a writ of certiorari to the clerk of the circuit court, the reporter, or any other person charged with the duty of preparing the record on appeal, directing that any omissions or errors in the record be corrected.
(b) Contents of writ. The writ shall order that the record be completed and certified within thirty days, and the explanation for any default in complying with the writ must be made on the return within the time directed. This procedure may be used in appeals of civil, criminal, and administrative agency or commission cases.
It is clear to me that if an appellant is unable to file the record with this court within ninety days, or within the extended period granted by the circuit court, and is further unable to obtain an extension order from the circuit court, the appellant’s remedy is to file a partial record in this court to give this court jurisdiction and petition this court for a writ of certiorari under Supreme Court Rule 3-5. That is precisely what the appellant did in this case. He filed his petition and partial record on the last day of the extended period — April 14, 2003. Then he tendered the full record on April 21, 2003, awaiting our ruling on his petition for writ of certiorari.
The procedure followed by the appellant has certainly been the practice followed by this court over the years, and I see nothing in the amended language of Rule 5(b) to change this practice. See In Re: Arkansas Rules of Civil Procedure; Rules of Appellate Procedure — Civil; and Administrative Orders, 352 Ark. Appx. 571 (2003) (per curiam). The majority, however, would deny the petition for writ of certiorari, which would have the effect of making the record late, and we would have to dismiss the appeal. I disagree that that is what Rule 5 requires.
To summarize, the majority interprets Rule 5 to allow this court to extend the time for filing the record by writ of certiorari only after seven months has expired from the date the notice of appeal was filed. Before the seven months has expired, according to the majority, only the circuit court can extend the time for filing the record. Nothing in Rule 5 imposes such a limitation. My interpretation is that an appellant may file a partial record and petition this court for a writ of certiorari within ninety days of the notice of appeal or any extended period for completion of the record, when the appellant is unable to obtain an extension from the circuit court. The appellant followed this procedure to a “T,” by coming to this court on the last day of his extended period. I would not dismiss this appeal.
For these reasons, I respectfully dissent.
Imber and Thornton, JJ., join.