Conray Carroll v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 26, 2003

CONRAY CARROLL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-448

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 96-1529, HON. CHRIS PIAZZA, J.]

MOTION TREATED AS MOTION FOR BELATED APPEAL AND DENIED

In 1997, judgment was entered reflecting that Conray Carroll had entered a plea of guilty to rape for which he was sentenced as a habitual offender to 720 months' imprisonment. In 2002, Carroll filed in the trial court a petition pursuant to Act 1780 of the 2001 Acts of Arkansas. The act amended Arkansas's state habeas corpus statute to provide that a writ could issue to any person "who has alleged actual innocence of the offense or offenses for which the person was convicted....in accordance with §16-112-201 et seq." Ark. Code Ann. §16-112-103(a)(1). The petition was denied. Petitioner Carroll did not file a notice of appeal within the thirty-day period allowed for filing a notice of appeal under Rule 4(a) of the Rules of Appellate Procedure-Civil.

When the record was tendered here, our clerk correctly declined to lodge it because of the

late 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 the notice of appeal was untimely, 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 our clerk should not have counted Saturdays, Sundays, and holidays in calculating the thirty-day time period for filing the notice of appeal. Petitioner's argument is without merit. The calculation of a the thirty-day period to file a notice of appeal considers calendar days, not business days. While Ark. R. App. P.-Crim. 17 permits a notice of appeal to be filed on the next business day when the thirtieth day falls on a Saturday, Sunday, or legal holiday, there is no provision in the prevailing rules of procedure for the timeliness of a notice of appeal to be calculated excluding non-business days.

A petitioner has the responsibility of filing a timely notice of appeal within thirty days of the date the order was entered. 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 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). As petitioner has not established good cause for his failure to file a timely notice of appeal, the motion to proceed with the appeal is denied.

Motion treated as motion for belated appeal and denied.

Corbin, J., not participating.