Alvin Tinkes v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 29, 2004

ALVIN TINKES

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-394

PRO SE PETITIONS FOR WRITS OF CERTIORARI AND MANDAMUS [CIRCUIT COURT OF SEVIER COUNTY, CR 2000-26, CR 2000-27]

PETITIONS DISMISSED

Per Curiam

In 2001, Alvin Tinkes was found guilty by a jury of manufacturing a controlled substance, possession of a controlled substance, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and aggravated assault. An aggregate sentence of 612 months' imprisonment was imposed. The court of appeals affirmed. Tinkes v. State, CACR 02-476 (Ark. App. April 30, 2003).

Tinkes subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37.1 seeking to vacate the judgments. The petition was denied after a hearing, and petitioner Tinkes filed a timely notice of appeal. On April 13, 2004, petitioner lodged a partial record in this court with the petition for writ of certiorari now before us, seeking to bring up the court reporter's transcript of the hearing to complete the record on appeal. On April 20, 2004, petitioner also filed a petition for writ of mandamus in which he asks this court to extend the time to lodge the record on appeal.

The effective date of the notice of appeal filed by petitioner was March 16 , 2004. On March 12, 2004, he filed a motion for extension of time to lodge the record, which was due here pursuant to Ark. R. App. P.-Civ. 5(a) within ninety days of March 16, 2004, i.e. June 14, 2004. The partial record filed by petitioner does not contain an order ruling on the motion for extension of time.

Instead of obtaining a ruling on the motion for extension of time, petitioner chose to file a partial record here, even though neither the ninety days to file a record without an extension's having been granted by the trial court nor the seven months that can be allowed by the trial court to lodge the record as provided by Ark. R. App. P.-Civ. 5(b)(2) had elapsed. We have held that Ark. R. App. P.-Civ. 5(b) requires the appellant to seek an extension of time in the trial court rather than circumventing the procedures provided in Rule 5(b) by filing a partial record here with a petition for writ of certiorari. Coggins v. Coggins, 353 Ark. 431, 108 S.W.3d 588 (2003).

Petitioner asserts in his petition for writ of certiorari that he has made every effort to obtain the transcript of the evidentiary hearing from the court reporter but the reporter has "inadvertently neglected, failed and refused to prepare the transcript within the time prescribed by the rules." He does not explain, however, why he failed to obtain a ruling on the motion for extension of time filed March 12, 2004. In the mandamus petition, he asks that this court grant the motion filed in the circuit court. He does not ask that this court issue a writ to compel the circuit court to rule on the motion.

As the ninety-day period to lodge the record will not elapse in this case until June 14, 2004, we find that petitioner has ample time to secure a ruling on his motion for extension of time and he has not demonstrated that the lower court has declined to act on the motion. Accordingly, the petition for writ of certiorari and petition for writ of mandamus are dismissed.

Petitions dismissed.