John Briley v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 8, 2004

JOHN BRILEY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-239

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF PULASKI COUNTY, CR 99-3175, TIMOTHY FOX, JUDGE]

MOTION DENIED

Per Curiam

John Briley was found guilty by a jury of possession of a controlled substance and sentenced to twenty years' imprisonment. The court of appeals affirmed. Briley v. State, CACR 02-324 (Ark. App. February 12, 2002). Briley subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court which was denied on August 20, 2003. Petitioner Briley did not file a notice of appeal until October 20, 2003, which was not within the thirty-day period allowed for filing a notice of appeal under Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal. He now seeks leave to proceed with a belated appeal of the order.

Petitioner contends that he should be permitted to proceed with a belated appeal because he mailed the notice of appeal to the circuit clerk on August 27, 2003, but the circuit clerk failed to file it until October 20, 2003. He alleges the clerk has declined to file other pleadings of his in a timely manner. He has appended to the motion for belated appeal a copy of forms entitled "Inmate Trust Fund Account Personal Withdrawal Request" and "Trust Fund Resident Activity," which he contends support his claim that he mailed the notice of appeal on August 27, 2003. There is, however, nothing to show that the notice was indeed placed in the mail or received by the clerk within the thirty-day period allowed for filing a notice of appeal.

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 within thirty days in accordance with Rule 2(a)(4). 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. 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). As we said in Skaggs,

If it [the allegation that a notice was mailed]
were [sufficient], there would be no point in setting up
rules of procedure since the procedural requirements
could be circumvented by a simple claim that the
petitioner's failure to comply with the rules was
caused by the post office.

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.