ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 1, 2001

PATRICK BROWN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-1190

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF COLUMBIA COUNTY, NO. CR 97-53, HON. CAROL CRAFTON ANTHONY, JUDGE]

MOTION DISMISSED

Patrick Brown was found guilty by a jury of burglary and theft of property and sentenced to an aggregate term of 300 months' imprisonment. The court of appeals affirmed. Brown v. State, 63 Ark. App. 38, 972 S.W.2d 956 (1998). Brown subsequently filed a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court. The petition was denied by the trial court on March 1, 1999.1 No appeal was taken, and Brown now seeks leave to proceed with a belated appeal of the order.

On June 27, 2000, petitioner Brown tendered to this court a pro se motion seeking leave to proceed with a belated appeal of the order. The motion could not be filed at that time because

petitioner failed to tender with it the record, or at the least a partial record, of the lower court proceedings which is required before a motion for belated appeal will be filed in this court. Petitioner was promptly notified of the need to provide this record and further informed that a motion for belated appeal not received within eighteen months of the date the order was entered would be considered untimely. On October 4, 2000, the partial record was received from petitioner and the motion was filed.

Before any examination of the merits of the motion for belated appeal can be undertaken, it must be determined whether the motion was timely filed. We conclude that it was not and dismiss it. Hayes v. State, 328 Ark. 95, 940 S.W.2d 886 (1997).

Belated appeals in criminal cases are governed by Rule 2(2) of the Rules of Appellate Procedure--Criminal. The rule provides in pertinent part that "no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of...the order denying postconviction relief...." Petitioner filed the motion here approximately nineteen months after the order was entered. It is incumbent on a petitioner to file the motion in a timely manner if the petitioner desires this court to consider whether to permit a belated appeal. Hayes, supra. The petitioner here did not do so and thus waived his right to appeal from the order.

Motion dismissed.

1 The court's order denying the Rule 37 petition erroneously held that the petition was untimely. As the petition was filed in the trial court fifty-five days after the mandate of the court of appeals was issued affirming the judgment, it was a timely petition. Rule 37.2(c) allows sixty days for a petition for postconviction relief to be filed after the mandate is issued.