Smith v. State

Cite as 2016 Ark. 194
SUPREME COURT OF ARKANSAS.
No. CR-16-231
WILLIE JAMES SMITH Opinion Delivered April 28, 2016
PETITIONER
PRO SE MOTION FOR RULE ON
V. CLERK
[ASHLEY COUNTY CIRCUIT
STATE OF ARKANSAS COURT, NO. 02CR-14-08]
RESPONDENT
HONORABLE SAM POPE, JUDGE
MOTION DENIED.
PER CURIAM
Petitioner Willie James Smith filed in the trial court a timely verified pro se petition
under Arkansas Rule of Criminal Procedure 37.1 (2015) in which he sought to challenge a
judgment reflecting his entry of a guilty plea to a charge of possession of firearms by certain
persons. After a hearing on the petition, the trial court denied it, and Smith filed a timely
notice of appeal. When the record on appeal was tendered to this court, our clerk declined
to lodge it because it was not received within the required time. Smith now brings this
motion for rule on clerk, and he seeks permission to proceed with the appeal. We deny the
motion.
Smith filed his notice of appeal on March 13, 2015. Under Arkansas Rule of
Appellate Procedure–Criminal 4 (2015), the record had to be filed no later than Thursday,
June 11, 2015, unless an extension of time had been granted in accord with Rule 4(c). Ark.
R. App. P.–Crim. 4(b) (requiring that, without an extension, the record must be filed with
the clerk of the appellate court and docketed within ninety days from the filing of the notice
Cite as 2016 Ark. 194
of appeal). The appeal record was tendered on July 22, 2015, which was 131 days after the
notice of appeal had been filed.
If the transcript of the trial record is not filed in the time prescribed, then a defendant
in a criminal case may file a motion for rule on clerk under Arkansas Rule of Appellate
Procedure–Criminal 2(e). Lewis v. State, 2012 Ark. 255, 423 S.W.3d 16 (per curiam). This
court may act on and decide only those cases where the movant shows good cause for the
failure to comply with our rules of procedure. Id.
Smith does not contend that the record was tendered within ninety days of the date
he filed his notice of appeal. He does assert that he filed a motion for an extension of time
in the trial court within the ninety-day period, and he alleges that the trial court denied that
motion before the ninety-day period expired. The remainder of Smith’s argument is not
clear, but he appears to allege the trial court later granted a motion for rule on clerk and
should not have denied his motion for an extension of time, and he attached a certified copy
of the trial court’s docket in support of his claim.
Despite his claim to the contrary, Smith did not demonstrate that he filed a motion
for extension of time within the requisite period of time. As noted, he was required to
lodge the record by June 11, 2015. The docket he provides indicates that a motion for an
extension of time was filed on July 13, 2015, and none was filed previous to that date. Even
if Smith could demonstrate that the trial court should have acted on and granted a timely
motion to extend the period of time for lodging the record under our rules, Smith’s motion
was not filed within the time required to give the trial court the authority to grant his
motion. See Hogue v. State, 2012 Ark. 171 (per curiam). Smith has failed to demonstrate
2
Cite as 2016 Ark. 194
good cause for the failure to comply with our rules of procedure. Accordingly, the motion
for rule on clerk is denied.
Motion denied.
3