Jerry Lewis Jarrett v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

JERRY LEWIS JARRETT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-258

AN APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY,

NO. CR 96-1065

HONORABLE JAMES MARSCHEWSKI,

CIRCUIT JUDGE

DISMISSED

Jerry Lewis Jarrett was found guilty of two counts of obtaining a controlled substance by fraud and sentenced as a habitual offender to a term of thirty years' imprisonment. The judgment was affirmed by the court of appeals. Jarrett v. State, CACR 98-1022 (Ark. App. April 14, 1999). Appellant subsequently filed in the trial court a petition for postconviction relief seeking to have the judgment vacated. The petition was denied on November 8, 1999. On November 17, 1999, appellant filed a pro se notice of appeal from the circuit court's order denying his Rule 37 petition. Appellant's counsel subsequently filed a notice of appeal from the same order on December 7, 1999. The record was lodged on March 2, 2000. We dismiss appellant's appeal because the record was not lodged within ninety days from the date of his first notice of appeal.

The timely filing of the record on appeal is jurisdictional. Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994); DeViney v. State, 299 Ark. 471, 772 S.W.2d 607 (1989). Rule 5 of the Arkansas Rules of Appellate Procedure -- Civil, made applicable to criminal cases pursuant to Rule4 of the Arkansas Rules of Appellate Procedure -- Criminal, provides that the record on appeal shall be filed with the clerk of this court within ninety days of the first notice of appeal unless the trial court grants an extension. An order of extension, however, must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. Ark. R. App. P. -- Civ. 5(b).

A petitioner has the right to appeal a ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner proceeded pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

Here, appellant filed a pro se notice of appeal and failed to insure that the record was lodged within ninety days of that notice of appeal. There is no indication from the record that appellant sought an extension of time to lodge the record; therefore, we dismiss.

Dismissed.