Keith A. King v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 21, 2002

KEITH A. KING

Appellant

v.

STATE OF ARKANSAS

Appellee

CACR 01-145

PRO SE MOTION TO RECALL MANDATE [CIRCUIT COURT OF SEBASTIAN COUNTY, FORT SMITH DISTRICT, NO. CR 00-104-109, HON. JAMES MARSCHEWSKI, JUDGE]

MOTION DENIED

Keith A. King was convicted of six counts of commercial burglary and sentenced to an aggregate term of thirty-six years' imprisonment. The court of appeals affirmed on November 7, 2001. King v. State, 75 Ark. App. 405, ___ S.W.3d ___229 (2001). The mandate was issued on November 27, 2001.

On November 28, 2001, King tendered a pro se petition for review, which was returned to him unfiled inasmuch as the mandate had already been issued. On December 13, 2001, King filed the instant pro se motion to recall the mandate to enable him to file the petition for review in this court, and the court of appeals subsequently certified the motion to this court for decision.1 King, who is a prisoner in the custody of the Arkansas Department of Correction, argues that the mandate should be recalled because he placed his petition for review in the out-going mail at the unit where he was incarcerated on November 21, 2001, but it was not mailed until November 27, 2001, because the mail room was closed for the Thanksgiving holiday.

The motion is denied. A pleading tendered to this court is considered tendered on the date it is received by the clerk, not on the date it may have been placed in the mail. See Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999). Moreover, appellant was represented by counsel in the appeal; having accepted representation by counsel, he was not entitled to be heard by himself and counsel. See Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991).

Motion denied.

1 For clerical purposes, the motion to recall mandate was assigned the same docket number as the appeal lodged in the court of appeals.