Charles Randall Davis v. George Brewer, Classification Administrator, Arkansas Department of Correction

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05-843

ARKANSAS SUPREME COURT

No. 05-843

NOT DESIGNATED FOR PUBLICATION

CHARLES RANDALL DAVIS

Petitioner

v.

GEORGE BREWER, CLASSIFICATION ADMINISTRATOR, ARKANSAS DEPARTMENT OF CORRECTION

Respondent

Opinion Delivered October 27, 2005

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF JEFFERSON COUNTY, CV 2003-478-1-5, HON. JOHN PLEGGE, JUDGE]

MOTION DENIED

PER CURIAM

Charles Randall Davis, an inmate in the custody of the Arkansas Department of Correction, filed a petition for writ of mandamus in the trial court. That petition was denied by written order entered on March 21, 2005. Davis then filed a notice of appeal on April 26, 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 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 the 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 April 20, 2005, and asserts that it satisfied the "mail-box rule." 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 decline 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 filemarked by the clerk, not on the date it may have been placed in the mail. Petitioner was solely responsible for filing the notice of appeal with the clerk by the date it was due. Petitioner has established no good cause for his failure to comply with proper procedure.

Motion denied.

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