David Sullivan v. Larry Norris, Director, Arkansas Department of Correction et al.

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

November 7, 2002

DAVID SULLIVAN

Petitioner

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, et al

Respondents

02-884

PRO SE MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 2002-564-5]

MOTION DENIED

On June 14, 2002, David Sullivan, an inmate of the Arkansas Department of Correction, filed a petition for declaratory judgment, naming Larry Norris, Director of the Arkansas Department of Correction, and the records supervisor at the prison unit where he was incarcerated as respondents. Sullivan, who had been found guilty of rape in 1985, alleged that the application to his case of the Sex and Child Offender Registration Act of 1997 (Act 989), codified as Ark. Code Ann. §12-12-901, et seq, violated the constitutional provision against ex post facto laws because he was convicted before the act went into effect. The petition was denied.

Sullivan filed a notice of appeal from the order and attempted to lodge the record in this court without paying a filing fee. When he was notified that he must remit a filing fee to the clerk to lodge an appeal in a civil matter, he filed the instant motion asking this court to waive the fee.

The motion is denied. Petitioner Sullivan clearly failed to state a claim on which the lower court could grant him the relief sought; thus, pursuant to Ark. R. Civ. P. 12(b)(6) he was not entitled to relief and is not entitled to proceed in forma pauperis and must remit the filing fee if he desires to pursue the appeal.

Act 989 of 1997 provided in pertinent part that it was applicable to persons who were found guilty of a sex offense on or after August 1, 1997, or were serving a sentence of incarceration on August 1, 1997, as a result of an adjudication of guilt for a sex offense. Rape is included in the definition of "sex offense" in Ark. Code Ann. §5-14-103. See Ark. Code Ann. §12-12-903(13). Act 989 requires that the convicted sex offender complete a sex offender registration form with the Arkansas Crime Information Center and that the offender notify law enforcement of any change in residency. Petitioner had been found guilty of a sex offense and was incarcerated as a result of that conviction on August 1, 1997, when the act went into effect. He was thus within the purview of the act. We have held that Act 989 does not violate the ex post facto and due process clauses of the United States and Arkansas constitutions. See Keller v. Fayetteville Police Department, 339Ark. 274, 5 S.W.3d 402 (1999).

Motion denied.