Memorandum

To:	Gail Arceneaux and Lorraine Sapp
From:	William L. Martin, III
Subject:	Exception Reports and Orders to Dismiss for Failure to File Briefs
Date:	January 5, 1998

Recently in the case A98A0697 . Willie James Bryant v. The State, the Court issued an order dismissing the appeal for failure to file brief and enumeration of errors. In fact, the appellant did file brief and enumeration of errors and the appeal should not have been dismissed.

This is another one of those cases where the certified mail rule causes problems. In this particular case the appellant followed the certified mail rule as set out in Rule 4 and mailed brief and enumeration of errors on December 16, the twentieth day. On the morning of December 22, an exceptions report went to Judge Ruffin 's office notifying him of the fact that the appellant had failed to file brief and enumeration of errors. In the afternoon of December 22, the brief and enumeration of errors came in with the certified mail. The brief and enumeration of errors were correctly docketed to December 16th.

On December 29th, the order went out dismissing for failure to file briefs. From December 22nd until December 29th the judge's office prepared the order dismissing, circulating same and brought it down to Lorraine to be disseminated.

The clerk's office failed to catch the matter. I believe we were negligent on two counts.

First, when the brief and enumeration of errors are docketed on the computer, if there is an entry of interoffice memo sent to the judge's office, the case needs to be flagged and the judge's office notified of the fact that the brief and enumeration of errors did come in. In this case the brief and enumeration of errors were timely filed and the Court should have been advised of that fact.

The second place we fell down was when the order went out dismissing for failure to file brief and enumeration of errors. Whoever is disseminating that order, at that point in time, should check the filing screen to make sure that no brief nor enumeration of errors have come in. In this case, the brief and enumeration of errors were timely and the Court should have been advised of that fact and the order should not have gone out. However, even if the brief and enumeration of errors were untimely, the Court should still be notified of the fact that the brief and enumeration of errors have come in, and then the Court can make the determination if the Court wishes to dismiss for failure to file timely or accept the briefs as being late and deal with the case on the merits.

In the future, we must be sure to check, both when we enter the brief and enumeration of errors on the docket to make sure no interoffice memos have gone to the judge's office, and also to check on any order dismissing for failure to file a brief and enumeration of errors to ascertain that no brief and enumeration of errors have been received by the clerk's office.

Thank you.