Bruce Leaks v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 24, 2002

BRUCE LEAKS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-756

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF MILLER COUNTY, NO. CR 97-95-1, HON. JOE GRIFFIN, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND DENIED

Bruce Leaks was found guilty by a jury of murder in the first degree and sentenced as a habitual offender to a term of 540 months' imprisonment. We affirmed. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). Leaks subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and Leaks filed a timely notice of appeal but did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).

Now before us is Leaks's motion for belated appeal of the order. As the notice of appeal was timely, we will treat the motion as a motion for rule on clerk to lodge the record. As grounds for the request to lodge the record belatedly, petitioner contends that the circuit clerk is at fault for failing to lodge the record in a timely manner.

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 and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See 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, circuit court, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). Petitioner failed to perfect the appeal and has not established that there was good cause for his failure to do so. Accordingly, the motion to proceed with the appeal is denied.

Motion treated as motion for rule on clerk and denied.