Odes Tolbert v. State of Arkansas

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Odes TOLBERT v. STATE of Arkansas

CR 97-489                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998




1.   Motions -- reinstatement of appeal -- petitioner has duty to
     move promptly for reinstatement. -- A petitioner whose appeal
     is dismissed may waive his right to have the appeal reinstated
     by failing without good cause to move promptly for its
     reinstatement.

2.   Motions -- pro se motion to reinstate appeal denied --
     petitioner waived right to have appeal reinstated by failing
     without good cause to move promptly for reinstatement. --
     Where petitioner was represented by retained counsel when his
     appeal was dismissed, the supreme court was entitled to rely
     on counsel's representation that petitioner had been provided
     a copy of the motion to dismiss and that there was good cause
     to dismiss the appeal; if petitioner did not approve of
     counsel's action in obtaining dismissal of the appeal, it was
     incumbent on him to act promptly; where the petitioner did not
     demonstrate that there was a satisfactory reason for the delay
     of four months in filing his motion and otherwise failed to
     provide good cause to reinstate the appeal, the motion was
     denied.


     Pro Se Motion to Reinstate Appeal; denied.
     Appellant, pro se.
     No response.

     Per Curiam.
     On October 17, 1996, judgment was entered reflecting that Odes
Tolbert had been found guilty by a jury of four counts of
possession of a controlled substance with intent to deliver.  He
was sentenced as a habitual offender to an aggregate sentence of
six hundred months' imprisonment.  An appeal of the judgment was
lodged in this court on April 29, 1997, by Mr. Tolbert's retained
attorney, Ray E. Hartenstein.  On June 9, 1997, Mr. Hartenstein
filed a motion to dismiss the appeal which said in pertinent part:
          After reviewing the transcript of the trial
          in this matter, the appellant has determined
          that he will initially seek relief pursuant
          to Rule 37 of the Arkansas Rules of Criminal
          Procedure rather than by appeal...Accordingly,
          the appellant seeks to dismiss his current
          appeal without prejudice to filing an appeal
          from his Rule 37 proceeding if appropriate
          relief is not obtained thereby.

Hartenstein filed with the motion a letter to our clerk certifying
that a copy of the motion had been mailed to Tolbert.  On July 7,
1997, we granted the motion to dismiss the appeal.  A copy of this
court's order was mailed to Tolbert on that date by our clerk.
Four months later on October 7, 1997, Tolbert filed the pro se
motion which is now before us, seeking a belated appeal of the
original judgment.  We will treat the motion as a motion to
reinstate the appeal.
     Petitioner Tolbert contends that he was unaware that
Hartenstein had filed the motion to dismiss the appeal until after
the motion was granted by this court.  He asserts that counsel's
action placed him in a "helpless and unjust" position and that he
is entitled to appellate review of the judgment.  Petitioner asks
that he be declared indigent and that a writ of certiorari be
issued by this court to bring up the record for the appeal of the
judgment at public expense.  He does not seek appointment of
counsel.  Whether Ray Hartenstein still represents him is
unknown.  
     Petitioner was represented by retained counsel when the appeal
was dismissed.  This court was entitled to rely on counsel's
representation that petitioner had been provided a copy of the
motion to dismiss and that there was good cause to dismiss the
appeal.  Moreover, even if petitioner had not been aware that the
motion had been filed, our clerk mailed a copy of this court's
mandate to the petitioner on the day it was issued.  If petitioner
did not approve of counsel's action in obtaining dismissal of the
appeal, it was incumbent on him to act promptly.  Just as a
convicted defendant may waive his right to appeal by failing
without good cause to file a timely notice of appeal, a petitioner
whose appeal is dismissed may waive his right to have the appeal
reinstated by failing without good cause to move promptly for its
reinstatement.  Petitioner here has not demonstrated that there was
a satisfactory reason for the delay of four months in filing this
motion and has otherwise failed to provide good cause to reinstate
the appeal.
     Motion denied.