Charlie M. Jamison v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 13, 2002

CHARLIE M. JAMISON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-356

PRO SE MOTION FOR BELATED APPEAL OF ORDER and FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF MISSISSIPPI COUNTY, CHICKASAWBA DISTRICT, CR 99-177, HON. SAMUEL TURNER, JR.]

MOTION FOR BELATED APPEAL DENIED; MOTION FOR APPOINTMENT OF COUNSEL MOOT

Charlie M. Jamison was found guilty by a jury of possession of a controlled substance with intent to deliver and sentenced to fifteen years' imprisonment. The Court of Appeals affirmed. Jamison v. State, CACR 00-83 (Ark. App. Sept. 27, 2000)(unpublished). Jamison subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in the trial court which was denied on April 5, 2001. Jamison did not file a notice of appeal with the circuit clerk within the thirty-day period allowed for filing a notice of appeal under Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal. He now, however, seeks leave to proceed with a belated appeal of the denial of his petition.

Jamison contends that he should be permitted to proceed with a belated appeal. He states that he "filed" notice of appeal with the prosecuting attorney and the Attorney General's office. He further attests that he waited ninety (90) days for a response from the circuit clerk stating that the

notice of appeal had been docketed. He never received any such notice from the circuit clerk, and prays that the Court grant him a belated appeal.

A petitioner has the right to appeal a ruling on a petition for postconviction relief. 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). 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 good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra. We have further held that the litigant who claims to have mailed an item has the burden of proving that he mailed it and that it reached the circuit clerk by the date it was due to be filed. See Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996).

Apparently, Jamison mailed copies of his notice of appeal to the prosecuting attorney and Attorney General, but failed to mail the notice to the circuit clerk. It must be assumed that if the petitioner had mailed the notice to the clerk on time, it would have been delivered and filed. Leavy, supra. There is no proof offered that the notice of appeal was mailed to the circuit clerk in time to reach the clerk for filing within the thirty-day period allowed to file a timely notice of appeal. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from but did not file it, and has stated no good cause for his failure to file a timely notice

of appeal, the motion to proceed with a belated appeal is denied.

Motion denied.