James Steward v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 31, 2002

JAMES STEWARD

PETITIONER

v.

STATE OF ARKANSAS

RESPONDENT

CR 02-531

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF SEBASTIAN COUNTY, NO. CR 97-859] [HONORABLE DON LANGSTON,

CIRCUIT JUDGE]

MOTION DENIED

James Steward was convicted of carnal abuse in the second degree and sentenced to ten years. The circuit court imposed nine months in the Arkansas Department of Correction and suspended imposition of the remainder of Steward's sentence. Steward filed a petition to correct an illegal sentence pursuant to Ark. Code Ann. §16-90-111 (Supp. 2001). The circuit court denied Steward's petition on September 17, 2001. Steward filed a notice of appeal from that denial on October 22, 2001. Approximately seven months later on May 20, 2002, Steward filed a pro se motion for belated appeal. We deny Steward's motion because there was no good cause shown for his failure to file a timely notice of appeal.

A petitioner has the right to appeal a ruling on a petition for postconviction relief which in this case was entered September 17, 2001. See 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 4(a) of the Rules of Appellate Procedure. 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 ; Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988). 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). The bare allegation that a notice of appeal was mailed is not in itself good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). 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. 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.