Terrick Nooner v. State of Arkansas

ARKANSAS SUPREME COURT

No. 04-891

NOT DESIGNATED FOR PUBLICATION

TERRICK NOONER

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered October 28, 2004

PRO SE MOTION FOR RULE ON CLERK AND MOTION FOR EXPEDITED CONSIDERATION OF MOTION [CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CV. 2004-242, HON. JOHN NELSON FOGLEMAN, J.]

MOTION FOR RULE ON CLERK TREATED AS MOTION FOR BELATED APPEAL AND DENIED; MOTION FOR EXPEDITED CONSIDERATION DENIED

PER CURIAM

Terrick Nooner, who is in the custody of the Arkansas Department of Correction, filed a pro se motion for breach of contract in the Circuit Court of Crittenden County, contending that the circuit court did not contact him to "plead when co-defendants copped-out to probation for vehicle theft." He demanded "restitution as setting aside a fraudulent conveyance." Nooner subsequently filed related pleadings. All the pleadings were dismissed by the circuit court on May 3, 2004.

Petitioner Nooner 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. 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 contends that he should be permitted to proceed with a belated appeal because the record contains a copy of a letter from one of our staff attorneys to him acknowledging receipt on May 12, 2004, of a notice of appeal and informing him that notices of appeal are not filed directly in this court. Petitioner argues that the presence of a copy of this letter in the record is tantamount to a timely notice of appeal filed in circuit court.

The motion is denied. Petitioner was obligated to file a timely notice of appeal with the Circuit Clerk of Crittenden County. Forwarding a notice of appeal to this court cannot substitute for filing a notice with the circuit clerk.

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). Petitioner here has not demonstrated good cause for his failure to conform to the prevailing rules of procedure.

Petitioner also filed a motion for expedited consideration in this matter, which is in actuality a request for a jury trial on a criminal charge apparently related to the "breach of contract" complaint filed in circuit court. This motion is also denied inasmuch as this court does not have jurisdiction to act with respect to the criminal case which may be pending in circuit court.

Motion for rule on clerk treated as motion for belated appeal and denied; motion for expedited consideration of motion denied.