Bannister v. State

2013 Ark. 412

• Court: Supreme Court of Arkansas
• Decided: October 10, 2013
• Docket: CR-13-761
• Status: Published

Opinion

Cite as 2013 Ark. 412

SUPREME COURT OF ARKANSAS No. CR-13-761

Opinion Delivered October 10, 2013

PRO SE MOTION FOR RULE ON ROBERT E. BANNISTER CLERK [CIRCUIT COURT OF PETITIONER WASHINGTON COUNTY, 72CR-11- 902, HON. WILLIAM A. STOREY, v. JUDGE] STATE OF ARKANSAS RESPONDENT MOTION DENIED.

PER CURIAM

Now before us is a pro se motion filed by Robert E. Bannister in which he seeks to

file in this court a pro se motion for belated appeal without a certified record or, in the

alternative, seeks an order from this court directing the Circuit Clerk of Washington County

to provide the certified record necessary to file the motion for belated appeal. Petitioner states

that the motion for belated appeal pertains to an order entered June 14, 2013, that denied a

pro se petition for writ of error coram nobis filed in his criminal case.

Even though petitioner includes the circuit clerk in his request for relief, the motion

is properly considered as a motion for rule on our clerk to file the motion for belated appeal

without the record required to file such motions. If a circuit clerk has not performed his or

her duty in a case, a petitioner should seek relief in the circuit court. See Meraz v. State, 2010

Ark. 121 (per curiam); see also Meraz v. Crow, 2009 Ark. 362 (unpublished per curiam) (A

claim that a circuit clerk had incorrectly file-marked a pleading would lie with the circuit Cite as 2013 Ark. 412

court for resolution.). Petitioner contends that it would be fruitless for him to file a motion

in circuit court asking for the certified record needed to file the motion for belated appeal

because the circuit court has already erroneously declared the proceeding moot. Petitioner’s

assumption that the circuit court would rule in a particular fashion, however, does not allow

him to proceed in this court without a certified record.

It is well settled that all litigants, including those who proceed pro se, must bear the

responsibility of conforming to the rules of procedure. McDaniel v. Hobbs, 2013 Ark. 107 (per

curiam). While a petitioner, particularly if he or she is incarcerated, may bear certain burdens

that challenge his or her ability to abide by procedural rules, the fact remains that this court

cannot assume jurisdiction of a matter without an adequate record. See Young v. State, 2009

Ark. 608 (per curiam); see also Croston v. State, 2012 Ark. 183 (per curiam). 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 and accurate copies of the material filed in the circuit court as a

foundation for assuming jurisdiction. Young, 2009 Ark. 608; Croston, 2012 Ark. 183. It is for

this reason that we have consistently held that, without a certified record to establish

jurisdiction, a motion for belated appeal cannot be acted on by this court.1 See Croston, 2012

Ark. 183 (Petitioner’s motion could not be filed as petitioner had failed to provide the

certified record necessary to file a motion for belated appeal.). It was petitioner’s burden to

1 As with the requirements of this court’s Rule 6-1(a), the pleadings and orders from the trial court are treated as the record. Ark. Sup. Ct. R. 6-1(a) (2012); see Paige v. State, 2012 Ark. 413 (per curiam); Barnett v. Tabor, 2010 Ark. 22 (per curiam); Hall v. Griffin, 2009 Ark. 494 (per curiam); Dillard v. Keith, 336 Ark. 521, 986 S.W.2d 100 (1999) (per curiam). This provision of Rule 6-1(a) is analogous to the record needed to act on a motion for belated appeal.

2 Cite as 2013 Ark. 412

provide a certified record with a motion for belated appeal sufficient to establish this court’s

jurisdiction and sufficient to allow this court to rule on the merits of his motion. See Williams

v. Helena Reg’l Med. Ctr., 2012 Ark. 126 (per curiam); Threadford v. Hobbs, 2011 Ark. 468 (per

curiam). Petitioner has not met that burden.2

Motion denied.

2 It should be noted that Arkansas Rule of Appellate Procedure–Criminal 2(e) (2013) allows a period of eighteen months to file a motion for belated appeal in this court. As the order that is the subject of petitioner’s tendered motion for belated appeal was entered June 14, 2013, he has ample time to secure the certified documents necessary to file the motion.