Olen Gunter v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

September 12, 2002

OLEN GUNTER

Petitioner

v.

LARRY NORRIS, DIRECTOR,

ARKANSAS DEPARTMENT

OF CORRECTION

Respondent

02-411

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 2001-644-3-5, HON. FRED DAVIS, JUDGE]

MOTION DENIED

Olen Gunter, an inmate of the Arkansas Department of Correction, filed a petition for writ of habeas corpus in the circuit court in the county where he was incarcerated. The petition was denied on November 14, 2001, and Gunter filed a motion "to readdress order denying petition for writ of habeas corpus" on November 28, 2001, asking that the court reconsider its decision. The motion was deemed denied on December 28, 2001. Gunter did not file a timely notice of appeal from the denial of the motion for reconsideration, and he now seeks to proceed with a belated appeal. Petitioner contends that he should be permitted to lodge the record belatedly because the court entered an order on March 15, 2002, specially denying the "motion to readdress order," and he filed a timely notice of appeal from the March 15, 2002.

A petitioner has the right to appeal an adverse ruling on a petition for writ of habeas corpus. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goesthe responsibility to file a timely notice of appeal. Rule 4(b)(1) of the Rules of Appellate Procedure-Civil provides that if a motion seeking reconsideration of a final order is not acted on by the court within thirty days, the motion is deemed denied on the thirtieth day. The petitioner here did not file a timely notice of appeal after his motion was deemed denied; the fact that the court acted on the motion after it was deemed denied does not alter the fact that petitioner failed to file a timely notice of appeal.

When a petitioner seeks to proceed with a belated appeal of an order, the burden is on him or her to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). Petitioner has not made such a showing. Motion denied.

Arnold, C.J., not participating.