Danny Joe Gipson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 13, 2003

DANNY JOE GIPSON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-44

PRO SE MOTION FOR BELATED APPEAL OF ORDER AND MOTION FOR EXPEDITED CONSIDERATION OF MOTION [CIRCUIT COURT OF CRAWFORD COUNTY, CR 2000-82-B, FLOYD G. ROGERS, JUDGE]

MOTION FOR BELATED APPEAL DENIED; MOTION FOR EXPEDITED CONSIDERATION MOOT

Danny Joe Gipson was found guilty of arson and sentenced as a habitual offender to 360 months' imprisonment. The court of appeals affirmed. Gipson v. State, CACR 01-408 (Ark. App. December 5, 2001).

Gipson subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. After a hearing at which petitioner Gipson was represented by an appointed attorney, the court denied the petition and relieved counsel. Petitioner did not file a notice of appeal within the thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.-Crim. 2(a)(4). He now seeks leave to proceed with a belated appeal of the order.

Petitioner Gipson contends that he should be permitted to proceed with a belated appeal because the attorney who represented him at the hearing was obligated to represent him onappeal in that the attorney did not state a sufficient cause pursuant to Ark. R. App. P.-Crim. 16 to be relieved. Thus, petitioner argues, the court erred in relieving counsel.

While Rule 16 applies to postconviction appeals to the extent that counsel must pursue an appeal if the petitioner communicates his desires to appeal to counsel and counsel has not been relieved by the court, it does not preclude the trial court from relieving counsel in a Rule 37.1 proceeding when the trial court determines that counsel should be permitted to withdraw in the interest of justice or for other sufficient cause. Moreover, there is no right to counsel in a postconviction proceeding. See Pennsylvania v. Finley, 482 U.S. 551 (1987); see also Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975). Rule 37.3(b) specifically permits the court to exercise its discretion in determining whether the petitioner should be afforded representation of counsel for an appeal. Once counsel in the instant matter was relieved, petitioner Gipson became responsible for perfecting the appeal if he desired to challenge the trial court's denial of his petition.

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 within thirty days of the date the order was entered in accordance with Ark. R. App. P.-Crim. 2(a)(4). If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se does not in itself 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).

This court has specifically held that it is not the responsibility of anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra.

As petitioner has stated no good cause for his failure to conform to the prevailing rules of procedure for perfecting an appeal, the motion to proceed with a belated appeal is denied. The motion for expedited consideration of the motion is moot.

Motion for belated appeal denied; motion for expedited consideration moot.

Corbin, J., not participating.