ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 8, 2001

CHARLES GADDIE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-1232

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF PULASKI COUNTY, CR 97-2755, HON. DAVID BOGARD]

MOTION DENIED

Charles Gaddie was found guilty by a jury of rape and sentenced to twenty years' imprisonment. The court of appeals affirmed. Gaddie v. State, CACR 98-1074 (December 15, 1999). Gaddie subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court which was denied on July 5, 2000. Gaddie did not file a notice of appeal until August 8, 2000, which was not within the thirty-day period allowed for filing a notice of appeal under Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal. He now seeks leave to proceed with a belated appeal of the order.

Petitioner Gaddie contends that he should be permitted to proceed with a belated appeal because the late filing of the notice of appeal was the fault of the circuit judge or circuit clerk. He states that he received the order on July 6, 2000, the day after it was entered, and that he mailed the notice of appeal to the clerk on that same day. He alleges that either the circuit judge or theclerk deliberately held the notice of appeal until it was too late to file it in an attempt to thwart his right to appeal.

Petitioner has appended to the motion for belated appeal a receipt reflecting that a charge of 35 cents was posted on his prison inmate account on August 8, 2000, for mailing an item. He states that the charge was for the mailing of the notice of appeal on July 6, 2000, but that for some unknown reason the charge was not posted until August 8, 2000. Also appended to the motion is a memo to petitioner from the mail room clerk stating that charges are not always deducted immediately, but that if he placed something in the mail on July 6, 2000, it would have been mailed that day.

A petitioner has the right to appeal a ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 2(a)(4). 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). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

We have further held that the litigant who claims to have mailed an item has the burdenof proving that he mailed it and that it reached the circuit clerk by the date it was due to be filed. See Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996). The bare allegation that a notice of appeal was mailed is not in itself good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). As we said in Skaggs,

If it [the allegation that a notice was mailed]

were [sufficient], there would be no point in setting up

rules of procedure since the procedural requirements

could be circumvented by a simple claim that the

petitioner's failure to comply with the rules was

caused by the post office.

It must be assumed that if the petitioner had mailed the notice to the clerk on time, it would have been delivered and filed. Leavy, supra. Petitioner's reliance on the receipt showing that 35 cents had been deducted from his account on August 8, 2000, is not well taken inasmuch as any item may have been mailed; that is, there is no proof offered that a notice of appeal was mailed to the circuit clerk or, if a notice was mailed, that it was mailed in time to reach the clerk for filing within the thirty-day period allowed to file a timely notice of appeal. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from but did not file it and has stated no good cause for his failure to file a timely notice of appeal, the motion to proceed with a belated appeal is denied.

Motion denied.