Tommy Phillips v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 7, 2002

TOMMY PHILLIPS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-992

PRO SE MOTION FOR CERTIFIED PHOTOCOPY OF TRANSCRIPT AT PUBLIC EXPENSE [CIRCUIT COURT OF PULASKI COUNTY, CR 97-1511]

MOTION DENIED

Tommy Phillips was convicted of capital murder and two counts of aggravated robbery. He was sentenced to life imprisonment without parole for capital murder, life imprisonment for one count of aggravated robbery, and forty years' imprisonment for the second count of aggravated robbery. We affirmed. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Phillips now seeks by pro se motion a certified copy of the transcript lodged in this court on appeal.

Petitioner invokes the Freedom of Information Act. As grounds for the request, petitioner states only that he filed, apparently in the trial court, a motion for extension of time to file a petition for postconviction relief pursuant to Criminal Procedure Rule 37. Such a motion would be procedurally barred, however, inasmuch as there is no provision in the rule for the granting of a motion extending the time to file a petition under the rule past the time limit set out in the rule, which is sixty days following issuance of the mandate of this court in caseswhere the judgment of conviction was affirmed on appeal. Ark. R. Crim. P. 37.2(c). The time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature; as a result, the circuit court could not grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

As to the Freedom of Information Act, codified as Ark. Code Ann. § 25-19-101 et seq,, it does not require an appellate court to provide photocopying at public expense. See Moore v. State, 324 Ark. 453, 921 S.W.2d 606 (1996). A petitioner is not entitled to a free copy of material on file with this court unless he demonstrates some compelling need for specific documentary evidence to support an allegation contained in a timely petition for postconviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985). Indigency alone does not entitle a petitioner to free photocopying. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). As any petition for postconviction relief under Rule 37 filed by petitioner now would be untimely, he has failed to demonstrate that he is entitled to photocopying at public expense.

It should be noted that when an appeal has been lodged in this court, the appeal record remains permanently on file with the clerk. Persons may review a record in the clerk's office and photocopy all or portions of it. An incarcerated person desiring a photocopy of a record may write this court, remit the photocopying fee, and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Moore, supra.

Motion denied.

Corbin, J., not participating.