David K. Chapman v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 8, 2003

DAVID K. CHAPMAN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-252

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF CLEBURNE COUNTY, NO. CR 98-164 A-1, HON. JOHN DAN KEMP, J.]

MOTION TREATED AS MOTION FOR BELATED APPEAL AND DENIED

David K. Chapman was found guilty by a jury of manufacturing a controlled substance and sentenced to life imprisonment. A fine of $25,000 was also imposed. We affirmed. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). The mandate of this court was issued on March 6, 2001.

Chapman subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, which was dismissed on June 6, 2001, because it did not comply with Rule 37.1(e) that sets forth certain mandatory guidelines for the form of a petition under the rule.

On August 24, 2001, petitioner Chapman filed another Rule 37.1 petition that was dismissed on October 9, 2001, on the ground that it was not timely filed. Petitioner did not file

a notice of appeal from the order.1

November 5, 2002, petitioner filed a motion asking that the order entered June 6, 2001, be recalled. The motion to recall the June 6, 2001, order was denied on November 19, 2002. Petitioner filed a designation of record, but he did not file a notice of appeal. When the record was tendered here, our clerk correctly declined to lodge it because there was no notice of appeal. Now before us is petitioner's motion for rule on clerk asking to be permitted to proceed with a belated appeal. As there was no notice of appeal, we treat the motion as a motion for belated appeal pursuant to Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal.

Petitioner contends that he should be permitted to proceed with a belated appeal because neither the trial court nor the circuit clerk informed him that the designation of record he filed was not tantamount to a notice of appeal and, thus, this court should not question the lack of a notice of appeal. He argues that the clerk and the lower court were obligated to point out to him that he had not filed a proper notice of appeal.

The motion for belated appeal is denied. We first note there is no requirement for a trial court or a circuit clerk to advise an appellant who fails to file a notice of appeal on proper procedure. Also, even if there had been a proper notice filed, there is no provision in Rule 37 for a motion to recall an order; therefore, petitioner could not have prevailed on appeal. If petitioner desired to challenge the June 6, 2001, order, it was incumbent on him to perfect a timely appeal from that order.

Motion treated as motion for belated appeal and denied.

1 The record contains a "designation of record" filed by petitioner over one year later on October 24, 2002, but it cannot be determined from its content if it was intended to apply to the October 9, 2001, order or some other order.