Frankie E. Forman v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 21, 2001

FRANKIE E. FOREMAN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-505

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 96-2419, HON. DAVID BOGARD, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK TO LODGE RECORD BELATEDLY AND DENIED

Frankie E. Foreman was found guilty of discharging a firearm from a vehicle in the first degree and sentenced to thirty years' imprisonment. The court of appeals affirmed. Foreman v. State, CACR 98-1348 (March 1, 2000). Foreman subsequently filed in the trial court a petition pursuant to Criminal Procedure Rule 37 challenging the judgment. The petition was denied, and Foreman filed a timely notice of appeal from the order on September 12, 2000, but the record was not tendered to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P. 5(a). Now before us is Foreman's pro se motion for belated appeal of the order. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the record belatedly.

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 expectcompliance 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). A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to abide by the prevailing rules of procedure which includes tendering the record on time. This responsibility applies to all litigants, including those proceeding pro se on appeal. Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990); Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). The burden is on the petitioner who failed to abide by proper procedure to demonstrate good cause for the failure to comply with procedural rules. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).

Petitioner Foreman has attached to the instant motion a copy of a motion for extension of time to lodge the record that he filed in the circuit court on December 8, 2000. He concedes that the motion was not acted on until January 29, 2001, which was after the ninety-day period to lodge the record had elapsed and was thus of no effect, but notes that the order granting the extension states that "inexplicably" the court did not receive the motion until on or about January 15, 2001. He argues that it was not his fault that the motion for extension of time was not given to the trial court until after the time to grant such a motion had expired.

We do not find that petitioner has stated good cause for his failure to tender the record on time. It is the responsibility of the appellant to secure action on a motion for time. If a motion for extension of time is filed and it becomes apparent that it will not be acted on by the date the record is due in the appellate court, the appellant must secure a partial record and lodgeit here in a timely manner. Mayo v. State, 321 Ark. 566, 906 S.W.2d 285 (1995). Petitioner failed

to perfect the appeal and must bear responsibility for that failure to act. It is well settled that it is not the responsibility of the circuit clerk, the circuit judge, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

Motion treated as motion for rule on clerk and denied.