Carl M. FIVEASH v. STATE of Arkansas

No. CA CR 83-138
676 S.W.2d 769Court of Appeals of Arkansas
Opinion delivered October 17, 1984

1. ATTORNEY’S FEES — WHEN MOTION SHOULD BE FILED — EFFECT OF LATE FILING. — Failure to file the motion for attorney’s fees in time for it to be considered at the time the case is considered on its merits could prevent the allowance of an attorney’s fee. 2. ATTORNEY’S FEES — LATE MOTION — NO FEES AWARDED. — Where eight months have elapsed since the case was decided and a new fiscal year has intervened, attorney’s fees will not be awarded.

Motion for Attorney’s Fee; denied.

F. James Jefferson, for appellant.

No Response from the State.

PER CURIAM.

On February 1, 1984, we affirmed the trial court’s judgment in the above styled case. On October 4, 1984, appellant’s court-appointed attorney filed a motion for attorney’s fee.

In Cristee v. State, 4 Ark. App. 33, 627 S.W.2d 34 (1982), we said that motions for attorney’s fees in these cases should be filed in this court in time for them to be considered at the time the case is considered on its merits. Two years later, in Stefanovich v. State, 10 Ark. App. 233, 662 S.W.2d 476 (1984), we called attention to Cristee and pointed out that failure to file the motion in time for it to be considered at the time the case is considered on its merits could prevent the allowance of an attorney’s fee.

We allowed a fee in both of those cases, but the motions were filed within three months of the case decision and in the same fiscal year. Here, eight months have elapsed and on July 1, 1984, a new fiscal year intervened.

Page 392

Our power to allow the fee at this late date is suspect; moreover, we do not think one should be allowed under the circumstances.

Motion denied.