Anthony Stephens a/k/a Anthony Stevens v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 10, 2002

ANTHONY STEPHENS

a/k/a Anthony Stevens

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-681

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF LONOKE COUNTY, NO. CR 99-103, HON. PHILLIP WHITEAKER, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK TO LODGE RECORD BELATEDLY AND DENIED

On January 7, 2000, judgment was entered reflecting that Anthony Stephens, who is also known as Anthony Stevens, had been found guilty by a jury of possession of a controlled substance with intent to deliver and sentenced to 600 months' imprisonment. An appeal from the judgment was not perfected, and this court granted leave to proceed with a belated appeal. Stevens v. State, 344 Ark. 168, 39 S.W.3d 758 (2001). The court of appeals affirmed the judgment.

Stevens v. State, CACR 00-1338 (Ark. App. October 24, 2001).

Stephens subsequently filed a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court which was denied. Stephens filed a timely notice of appeal from the order on February 14, 2002, but the record was not tendered to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P. 5(a). Now before us is Stephens's pro se motion for belated appeal of the order. As the notice of appeal wastimely filed, we treat the motion as a motion for rule on clerk to lodge the record belatedly.

The purpose of the rule setting time limitations on lodging a record is to eliminate unnecessary delay in the docketing of appeals. We have made it abundantly clear that we expect compliance with the rule so that appeals will proceed as expeditiously as possible. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995), citing Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982). A petitioner has the right to appeal an adverse 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 abide by the prevailing rules of procedure which includes tendering the record on time. This responsibility applies to all litigants, including those proceeding pro se on appeal. Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990); Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). The burden is on the petitioner who failed to abide by proper procedure to demonstrate good cause for the failure to comply with procedural rules. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).

Petitioner Stephens contends that the fact that he filed a motion for extension of time to lodge the record should be cause to allow the appeal to proceed because it was not his fault that the motion was never acted on by the court.

We do not find that petitioner has stated good cause for his failure to tender the record on time. It is the responsibility of the appellant to secure action on a motion for time. If a motion for extension of time is filed and it becomes apparent that it will not be acted on by the date the record is due in the appellate court, the appellant must secure a partial record and lodge it here in a timely manner. Mayo v. State, 321 Ark. 566, 906 S.W.2d 285 (1995). Petitioner failed

to perfect the appeal and must bear responsibility for that failure to act. It is well settled that it is not the responsibility of the circuit clerk, the circuit judge, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

Motion treated as motion for rule on clerk and denied.

Arnold, C. J., not participating.