ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

OCTOBER 16, 2003

WILLIE NELSON

Petitioner

v.

STATE OF ARKANSAS,

Respondent

CR 03-631

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 2000-390, CR 2000-569, HON. CHARLES CLAWSON, JR., J.]

MOTION FOR RULE ON CLERK TREATED AS MOTION FOR BELATED APPEAL AND DENIED

Per Curiam

Willie Nelson filed a motion in the trial court seeking modification of conditions of a suspended sentence. The motion was denied. Nelson did not file a notice of appeal within the thirty-day period allowed for filing a notice of appeal under Rule 4(a) of the Rules of Appellate Procedure-Civil. When the record was tendered here, our clerk correctly declined to lodge it because of the late notice of appeal.

Now before us is petitioner's motion for rule on clerk, asking to be permitted to proceed with a belated appeal. As the notice of appeal was untimely, we treat the motion as a motion for belated appeal pursuant to Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal.

Petitioner 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 cumbersome, ineffective mail system where he is incarcerated. He further contends that the notice of appeal should be considered filed with the circuit clerk upon deposit in the prison mail room.

The motion is denied. We have held that a pleading or other item tendered to a court is considered tendered on the date it is received by the clerk, not on the date it may have been placed in the mail. See Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999).

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 Ark. R. App. P.-Crim. 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 anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra.

We have further held that the litigant who claims to have mailed an item has the burden of 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.

There is no proof offered that the notice of appeal was mailed to the circuit clerk 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 for rule on clerk treated as motion for belated appeal and denied.