David Earl Gipson v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
SEPTEMBER 11, 2003

DAVID EARL GIPSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-553

PRO SE MOTIONS FOR BELATED APPEAL, TO LODGE RECORD BELATEDLY, FOR RULE ON CLERK, FOR BRIEFING SCHEDULE, TO CONSOLIDATE RECORD, TO AMEND MOTION FOR RULE ON CLERK, AND PETITION FOR WRIT OF CERTIORARI [CIRCUIT COURT OF SEBASTIAN COUNTY, FT. SMITH DISTRICT, NO. CR 00-361, CR 00-362, CR 00-364, CR 00-365, CR 00-366, CR 00-367, HON. J. MICHAEL FITZHUGH, JUDGE]

MOTION FOR BELATED APPEAL TREATED AS MOTION FOR RULE ON CLERK AND DENIED; ALL OTHER MOTIONS AND PETITION FOR WRIT OF CERTIORARI MOOT

Per Curiam

On April 27, 2001, judgment was entered reflecting that David Earl Gipson had been found guilty by a jury of thirteen felony offenses for which an aggregate term of 840 months' imprisonment was imposed. The court of appeals affirmed. Gipson v. State, CACR 01-686 (Ark. App. October 2, 2002).

Gipson subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. The petition was denied,and Gipson filed a timely pro se notice of appeal on December 6, 2002, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).1

Now before us is Gipson's motion for belated appeal of the order. As the notice of appeal was timely, we will treat the motion as a motion for rule on clerk to lodge the record. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997). Petitioner Gipson has also filed a series of other pleadings, all of which are requests to be allowed to proceed with the appeal.

Petitioner attributes the late tender of the record to reliance on an order contained in the record extending the time to lodge the appeal in this court. The order, however, was not effective. Rule 5(b) of the Rules of Appellate Procedure-Civil provides that an extension of time to lodge an appeal record may be granted upon a finding that a court reporter's transcript is designated as part of the appeal record and the extension is necessary for inclusion of that transcript in the record. Here, there was no hearing held on the Rule 37.1 petition and thus there was no court reporter's transcript to be prepared.

It is the petitioner who is responsible for providing at least a partial record within the ninety-day period for lodging an appeal. Ark. R. App. P.-Civ. 5(c). This court has consistently held that all litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983). The pro se appellant receives no special consideration on appeal. See Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). It is not the responsibility of the circuit judge, the circuit clerk, the court reporter, or anyone other than the pro se party desiring to appeal to perfect the appeal. See Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990); Bragg, supra.

The purpose of the rule setting time limitations on lodging a record is to eliminate unnecessary delay in the docketing of appeals. We have made it abundantly clear that we expect compliance with the rule so that appeals will proceed as expeditiously as possible. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995), citing Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982). It was the duty of the petitioner to tender the record to this court in a timely manner. As he did not do so and has not demonstrated good cause for the failure to do so, the motion to proceed with the appeal is denied.

Motion for belated appeal treated as motion for rule on clerk and denied; all other motions and petition for writ of certiorari moot.

Thornton, J., not participating.

1 The record was tendered here 145 days after the notice of appeal was filed.