Joseph Daniel Rice v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

March 11, 2004

JOSEPH DANIEL RICE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-463

APPEAL FROM THE CIRCUIT COURT OF INDEPENDENCE COUNTY, CR 2001-38-1, HONORABLE JOHN DAN KEMP, JR. JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of criminal attempt to commit first-degree murder, committing a terroristic act, and aggravated assault for which he was fined $40,000 and sentenced to a total of fifty-six years' imprisonment. The judgment and commitment order was entered on June 21, 2002. Appellant filed a timely notice of appeal on July 10, 2002. On August 29, 2002, following a hearing, the trial court entered an order denying appellant's motion to proceed in forma pauperis due to his ownership of real property in Sharp County, Arkansas. On October 16, 2002, appellant filed a notice of appeal. On January 29, 2003, appellant tendered a record on appeal from the August 2002 order, which our clerk correctly declined to lodge because the notice of appeal was not filed within the thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.-Crim. 2(a)(4). Appellant then filed a motion for rule on the clerk to proceed with his appeal of the August 2002 order. We denied his motion in an unpublished opinion. Rice v. State, CR 03-279 (Ark. May 22, 2003) (per curiam).

On February 24, 2003, prior to our denial of his motion for rule on the clerk, appellant filed a motion seeking a transcript of the hearing held to consider his motion to proceed in forma pauperis. According to appellant, he needed a copy of the transcript to bolster his claim that the trial court erred in denying his motion. In an order entered on March 13, 2003, the trial court denied the motion, stating that it had already determined that appellant was ineligible to proceed in forma pauperis in its August 2002 order; thus, he was not entitled to a transcript at public expense. Appellant filed a timely notice of appeal of the March 2003 order, arguing that the trial court erred in its determination that he owned real property because he had sold the property to his mother.

On appeal, appellant claims that his convictions for committing a terroristic act and aggravated assault should be set aside. According to appellant, the trial court was required to do so pursuant to Ark. Code Ann.§ 5-1-110 (Repl. 1997) and the Double-Jeopardy Clause of the Fifth Amendment to the United States Constitution.

There is nothing in the record to indicate that appellant raised this claim below or on direct appeal; however, because double-jeopardy protection is a fundamental right, it may be raised for the first time in a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Rowbottom v. State, 341 Ark. 33, 37, 13 S.W.3d 904, 906-07 (2000). That being said, we are unable to address the merits of appellant's claim because there is nothing in the record indicating that he ever filed a Rule 37 petition. Because appellant has failed to properly raise this claim, it is procedurally barred.

For his second claim, appellant asserts that the trial court erred by denying his initial motion to proceed in forma pauperis and by stating in its March 2003 order that appellant owned real property. As stated, this court has ruled that appellant may not proceed with an appeal of the denial of his motion to proceed in forma pauperis. See Rice, supra. Having failed to file a timely notice of appeal, appellant is precluded from challenging the denial of his motion in these proceedings. See, e.g., Brimer v. State, 301 Ark. 540, 542, 785 S.W.2d 458, 459 (1990). As for appellant's challenge to the March 2003 order, he may not circumvent our ruling by requesting the same relief through another appeal.

Finally, appellant argues that he did not have adequate notice of the hearing on his motion to proceed in forma pauperis. According to appellant, if given proper notice, he would have convinced the court to grant the motion. This is yet another attempt by appellant to appeal the denial of the August 2002 order, which he cannot do. Accordingly, we affirm the ruling below.

Affirmed.