Leonel Bautista v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 30, 2003

LEONEL BAUTISTA

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-497

PRO SE MOTION TO FILE BELATED PETITION FOR REHEARING [CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CR 98-950-A, HONORABLE SAMUEL TURNER, JR., JUDGE]

MOTION DENIED

Appellant was convicted of possession of methamphetamine with intent to deliver and was sentenced to forty years' imprisonment. The court of appeals affirmed. Bautista v. State, CACR 99-1315 (Ark. App. Aug. 30, 2000).

Appellant subsequently filed a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, claiming ineffective assistance of counsel that was denied. Appellant was represented by counsel on appeal but requested and was granted leave to proceed pro se. We affirmed the order. Bautista v. State, CR 01-497 (Ark. October 10, 2002).

Appellant tendered a petition for rehearing one day after the mandate was issued and now seeks leave to file the petition belatedly. Appellant places the fault for the late tender of the petition for rehearing on slow mail delivery.

The motion is denied. We have said that the bare allegation that a notice of appeal was mailed in a timely manner but delayed by the post office is not in itself good cause to excuse thelate tender of the notice. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). The reasoning in Skaggs also applies to pleadings which must be tendered by a particular date. As we said in Skaggs:

If it [the allegation that a notice was mailed]

were [sufficient], there would be no point in

setting up rules of procedure since the procedural

requirements could be circumvented by a simple

claim that the petitioner's failure to comply with

the rules was caused by the post office.

Motion denied.

Arnold, C. J., not participating.