Joseph Daniel Rice v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 22, 2003

JOSEPH DANIEL RICE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-279

PRO SE MOTION FOR RULE ON CLERK TO PROCEED WITH APPEAL OF ORDER [CIRCUIT COURT OF INDEPENDENCE COUNTY, NO. CR 2000-38, HON. JOHN DAN KEMP, JUDGE]

MOTION DENIED

On August 29, 2002, an order was entered denying a motion to proceed in forma pauperis filed by Joseph Daniel Rice. On October 16, 2002, Rice filed a notice of appeal. On January 29, 2003, Rice tendered a record on appeal from the August 29, 2002, order, which our clerk correctly declined to lodge because the notice of appeal was not filed within the thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.-Crim. 2(a)(4). Petitioner Rice now seeks leave to lodge the record and proceed with the appeal. As grounds for the request, petitioner contends that he was placed in punitive segregation after the trial court entered its order of August 29, 2002, and thus did not have access to his legal papers to submit a timely notice of appeal.

A petitioner is entitled to appeal an adverse ruling on a motion to proceed in forma pauperis in a criminal case. With that right, however, goes the responsibility to file a timelynotice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to file a timely notice of appeal, 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 is proceeding 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). Likewise, the fact that a petitioner is incarcerated does not automatically excuse the failure to act. See Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986).

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.

It was thus the petitioner's burden to file the notice of appeal in time and perfect the appeal. Petitioner has not established that there was good cause for his failure to do so. Accordingly, the motion to proceed with the appeal is denied.

Motion denied.

Corbin, J., not participating.