Summary
The Arkansas Supreme Court considered Douglas Cook’s pro se motion for belated appeal and certiorari to complete the record concerning the denial of his Rule 37.1 petition. Because the notice of appeal was timely, the court treated the motion as one for rule on clerk to perfect the appeal, but remanded for the Pope County Circuit Clerk to determine the correct file-mark date of the petition. The court directed the trial court to determine whether it had jurisdiction to reach the merits and to issue an appropriate order.
Topics
Practice areas
Questions Presented
- Whether Cook's timely notice of appeal required the Supreme Court to treat his motion for belated appeal as a motion for rule on clerk to perfect the appeal.
- Whether the appellate court could determine the timeliness and jurisdictional effect of Cook's Rule 37.1 petition without a file-marked or certified record.
- Whether the matter should be remanded for the circuit clerk to determine the correct filing date of the Rule 37.1 petition and for the trial court to determine its jurisdiction.
Holdings
- Because Cook timely filed his notice of appeal from the order denying Rule 37.1 relief, his motion for belated appeal was properly treated as a motion for rule on clerk to perfect the appeal under Arkansas Supreme Court Rule 2-2(b).
- The court could not properly consider Cook's motion or determine the filing date and jurisdictional consequences of the Rule 37.1 petition without a file-marked copy or certified record establishing when the petition was tendered and filed.
- The matter was remanded for the Pope County Circuit Clerk to determine the correct file-mark date of Cook's Rule 37.1 petition and for the trial court thereafter to determine whether it had jurisdiction and to enter an order ruling on and disposing of the petition.
Key quotations
“A trial court cannot grant relief on an untimely Rule 37.1 petition; thus, a circuit clerk “may not decline to file, or delay the filing of, a Rule 37.1 petition while awaiting the trial court’s decision of whether to grant or deny a motion for leave to proceed in forma pauperis in the matter, a motion for appointment of counsel or for any other reason.”” (2016 Ark. 143)
“It is well settled that all litigants, including those who proceed pro se, must bear the responsibility of conforming to the rules of procedure.” (2016 Ark. 143)
“Without a certified record, we are left to rely on a petitioner’s statements and copies of documents that may or may not be true or accurate copies of the material filed in the trial court as a foundation for assuming jurisdiction.” (2016 Ark. 143)
“without a certified record to establish jurisdiction, a motion for belated appeal cannot be acted on by this court.” (2016 Ark. 143)
Factual background
Cook pleaded guilty to four counts of rape on October 27, 2014, and received an aggregate 720-month sentence. He submitted a Rule 37.1 petition and an application to proceed in forma pauperis, but the petition lacked a file mark or notation showing when it was tendered. The circuit court denied the petition as untimely, and the appellate clerk declined to lodge Cook's partial record because it did not contain a file-marked petition.
Procedural history
Cook pleaded guilty in the Pope County Circuit Court to four counts of rape and received an aggregate sentence of 720 months' imprisonment. He later submitted a Rule 37.1 petition and related in forma pauperis materials, but the petition was not file-marked. The circuit court denied the Rule 37.1 petition as untimely, and Cook timely noticed an appeal from that order. The Supreme Court of Arkansas treated his motion for belated appeal as a motion for rule on clerk to perfect the appeal and remanded for determination of the petition's correct filing date and further jurisdictional proceedings.
Remand instructions
The Pope County Circuit Clerk must determine the correct file-mark date for Cook's Rule 37.1 petition. After the petition is filed or its filing date is established, the trial court must determine whether it has jurisdiction to reach the merits and issue an order ruling on and disposing of the Rule 37.1 petition.