Ivory Purifoy v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 23, 2004

IVORY PURIFOY

Petitioner

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Respondent

01-25

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF LINCOLN COUNTY, NO. LCIV 98-21-3, HON. FRED DAVIS, J.]

MOTION FOR RULE ON CLERK TREATED AS MOTION FOR BELATED APPEAL AND DENIED

Per Curiam

Ivory Purifoy, who is in the custody of the Arkansas Department of Correction, filed a pro se petition for declaratory judgment in Circuit Court of Lincoln County. The motion was denied. Petitioner Purifoy did not file a notice of appeal within the thirty-day period allowed for filing a notice of appeal under Rule 4(a) of the Rules of Appellate Procedure-Civil. When the record was tendered here, our clerk correctly declined to lodge it because of the late notice of appeal.

Now before us is petitioner's motion for rule on clerk, asking to be permitted to proceed with a belated appeal. As the notice of appeal was untimely, we treat the motion as a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

Petitioner contends that he should be permitted to proceed with a belated appeal because the notice of appeal was placed in the mailbox where he was incarcerated before the time to file the

notice had elapsed. He also states that he relied on a fellow inmate for assistance in preparing the notice of appeal, and the inmate did not complete the notice until one day before it was due.

The motion is denied. We have held that a pleading or other item tendered to a court is considered tendered on the date it is received by the clerk, not on the date it may have been placed in the mail. See Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999). 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 petitioner whose pleading is denied has the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Ark. R. App. P.-Civ.4(a). 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). Likewise, petitioner's reliance on a fellow inmate does not relieve him of the responsibility to file a timely notice of appeal. We have specifically held that reliance by one incarcerated person on another for legal advice or assistance is not an excuse for failing to conform to procedural rules. Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988). It is not the responsibility of anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra.

Motion for rule on clerk treated as motion for belated appeal and denied.