Johnny Paul Dodson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-535

NOT DESIGNATED FOR PUBLICATION

JOHNNY PAUL DODSON

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered June 30, 2005

PRO SE MOTION TO FILE A BELATED APPEAL [CIRCUIT COURT OF GARLAND COUNTY, CR 1998-415-I, HON. JOHN HOMER WRIGHT, JUDGE]

MOTION DENIED

PER CURIAM

Johnny Paul Dodson was convicted by a jury of possession of a controlled substance, methamphetamine, with intent to deliver, and possession of a controlled substance, marijuana, and sentenced to life imprisonment. After his original appeal on that conviction was dismissed, we reinstated the appeal in response to appellant's pro se motion. Dodson v. State, 356 Ark. 118, 146 S.W.3d 893 (2004). This court then affirmed the conviction and sentence. Dodson v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 16, 2004). Dodson filed a petition for postconviction relief and amendments to it, under Ark. R. Crim. P. 37.1, which was denied by order entered January 7, 2005.

Dodson filed a notice of appeal of that order on February 10, 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. See Scottv. State, 281 Ark. 436, 664 S.W.2d 475 (1984) (per curiam). However, along with that right, goes the responsibility to file a timely notice of appeal. 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 essentially places the fault for the untimely filing of the notice of appeal on the mail room of the Arkansas Department of Correction, stating that he first placed the documents in the mail with what petitioner contends were adequate arrangements for postage, but that they were delivered with inadequate postage and refused. Petitioner asserts that this caused the delay beyond the deadline for filing.

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.