Jerry L. Newton v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

JERRY L. NEWTON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-837

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF JEFFERSON COUNTY, CR 98-18-2, HON. H. A. TAYLOR]

MOTION DENIED

In 1999, Jerry A. Newton was found guilty of manslaughter and leaving the scene of a personal- injury accident. He was sentenced to ten years' imprisonment. An additional prison term of six years was suspended, and Newton was also fined $20,000. The court of appeals affirmed. Newton v. State, CACR 99-1293 (June 28, 2000). Newton subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied by order entered April 3, 2001.1 No appeal was taken, and Newton now seeks by pro se motion to proceed with a belated appeal of the order.

A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief under Rule 37. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right,however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal. 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 some good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).

Petitioner Newton states that he did not receive the order entered April 3, 2001, until June 7, 2001, and thus could not have filed a timely notice of appeal. Rule 37.3 (d) provides that the circuit clerk must promptly provide the petitioner with a copy of the court's order when it is entered. This court will grant a belated appeal if the petitioner contends that the clerk failed to comply with Rule 37.3 (d), and it cannot be determined from the record or from proof provided by the State that the order was promptly forwarded to the petitioner. Chiasson v. State, 304 Ark. 110, 798 S.W.2d 927 (1990); Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985). The record here reflects that the clerk mailed a copy of the order to petitioner, but petitioner contends that the order was not promptly mailed to him. He asserts that although he was no longer housed at the unit of the Arkansas Department of Correction to which the order was mailed, it would have been forwarded to him at his new address if it had been sent.

The clerk's notation on the order indicating that a copy of the order was mailed to petitioner is sufficient to establish that the order was mailed to him. Petitioner has not demonstrated that the clerk failed to comply with Rule 37.3(d). As he has failed to offer any good cause for the failure to perfect an appeal from the order, the motion for belated appeal is denied.

Motion denied.

1 The attorney who represented petitioner Newton in the Rule 37 proceeding was relieved as counsel in the court's order and thus had no obligation to pursue an appeal from the order.