Herschell Finch v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 05-577

NOT DESIGNATED FOR PUBLICATION

HERSCHELL FINCH

Petitioner

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Respondent

Opinion Delivered June 30, 2005

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF PULASKI COUNTY, CV 2005-508]

MOTION DENIED

PER CURIAM

Herschell Finch is an inmate in the custody of the Arkansas Department of Correction. He filed a petition for writ of habeas corpus in the circuit court of the county in which he is incarcerated, and the petition was denied by order entered on January 28, 2005. Finch filed a notice of appeal on March 8, 2005, which was not within the thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.-Civ. 4 (a). When the record was tendered to this court, our clerk correctly declined to lodge it because the notice of appeal was untimely. Now before us is petitioner's motion for belated appeal.

A petitioner has the right to appeal a ruling on a petition for postconviction relief, which includes the dismissal of a petition for writ of habeas corpus. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984) (per curiam). Along with that right, however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered as required by 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)(per curiam).

Petitioner states that he placed the documents in the mail on February 22, 2005, and asserts that they should have been filed prior to the February 28, 2005, deadline for timely filing. Petitioner essentially places the fault for the untimely filing of the notice of appeal on the mail room of the Arkansas Department of Correction

The motion is denied. We have declined to adopt the prison mail-box rule that is accepted in some courts, and which provides that a pro se inmate files his or her petition at the time the petition is placed in the hands of prison officials for mailing. Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999). An item tendered to a court is considered tendered on the date it is received and file marked by the clerk, not on the date it may have been placed in the mail. Petitioner is solely responsible for depositing his brief with the clerk. Petitioner has established no good cause for his failure to comply with proper procedure.

Motion denied.