Patrick Robertson v. Larry Norris, Director, Arkansas Department of Correction; and C. Sumner, Arkansas Department of Correction Records Coordinator Centralized Records

ARKANSAS SUPREME COURT

No. 03-1205

PATRICK ROBERTSON

Appellant

v.

LARRY NORRIS, DIRECTOR ARKANSAS DEPARTMENT OF CORRECTION; AND C. SUMNER, ARKANSAS DEPARTMENT OF CORRECTION RECORDS COORDINATOR CENTRALIZED RECORDS

Appellees

Opinion Delivered May 19, 2005

PRO SE MOTION TO FILE BELATED PETITION FOR REHEARING [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2003-158-5, HON. FRED D. DAVIS, III, JUDGE]

MOTION DENIED

PER CURIAM

Appellant Patrick Robertson, a state prisoner, appealed a decision of the Jefferson County Circuit Court denying his petition for writ of mandamus against officials of the Arkansas Department of Correction (ADC), the appellees in this case. In that appeal, Robertson contended that the ADC had improperly classified him for parole-eligibility purposes as a third offender. In his petition, he asked the circuit court to order the ADC officials to reclassify him as a second offender. The circuit court denied Robertson's petition for mandamus, and we affirmed. Robertson v. Norris, 03-1205 (Ark. Feb. 10, 2005). The mandate was issued on March 1, 2005. Before us now is appellant's motion to file a belated petition for rehearing.

Appellant claims that on February 24, 2005, his petition for rehearing was to be mailed from the Varner Unit Mail Room, and it was not. According to appellant, his mail was "held" from February 24, 2005 until March 1, 2005, at which time his petition was returned to him.

Regardless of the reasons advanced by appellant for his failure to file a timely petition for rehearing, the motion is denied as he could not have prevailed on appeal. As noted in Robertson, supra, appellant failed to lodge a sufficient record on appeal. It was appellant's burden to produce a record establishing that he indeed had a legal right, which is required in order to grant a petition for writ of mandamus. He did not do so. Accordingly, there is no good cause to grant a belated petition for rehearing because appellant could not prevail.

Motion denied.

Imber, J., not participating.