Halfacre v. Kelley

2016 Ark. 71

• Court: Supreme Court of Arkansas
• Decided: February 18, 2016
• Docket: CV-15-958
• Status: Published

Opinion

Cite as 2016 Ark. 71

SUPREME COURT OF ARKANSAS. No. CV-15-958

KENNY HALFACRE Opinion Delivered February 18, 2016 APPELLANT PRO SE MOTION FOR RULE ON V. CLERK [LINCOLN COUNTY, NO._______] WENDY KELLEY, DIRECTOR ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES CORRECTION DENNIS, JUDGE APPELLEE MOTION GRANTED; REMANDED.

PER CURIAM

This is an appeal from an order denying a petition to proceed in forma pauperis in

the circuit court. On September 25, 2015, the appellant, Kenny Halfacre tendered an appeal

record to the clerk of this court which was rejected because it lacked a file-marked copy of

the order from which Halfacre appealed. Pending before this court is Halfacre’s motion for

rule on the clerk. For the reasons stated below, the motion is granted and the record

remanded to the circuit court.

In his motion for rule on clerk, Halfacre contends that he had submitted to the circuit

court a petition for habeas corpus relief and asked the court for permission to proceed in

forma pauperis. The record tendered on appeal demonstrates that the circuit court issued

an order that denied the in forma pauperis petition. This order contained a handwritten

date of July 14, 2015, but it was not file marked. In addition, the tendered record also

lacked a copy of the petition to proceed in forma pauperis, and, while the tendered record

contained an affidavit submitted by Halfacre in support of the petition to proceed in forma Cite as 2016 Ark. 71

pauperis, the affidavit was not file marked. The record reflects that a docket number was

not assigned, and the action filed by Halfacre was identified by the circuit clerk as “unfiled

inmate pleadings.” Halfacre submitted a timely notice of appeal which was file marked with

a date of August 14, 2015. Filing a timely notice of appeal is sufficient to confer appellate

jurisdiction. Smith v. Estate of Howell, 372 Ark. 186, 190, 272 S.W.3d 106, 109 (2008). On

August 27, 2015, the circuit court issued an order granting Halfacre’s petition to proceed in

forma pauperis with this appeal. That order was also file marked.

A motion for rule on the clerk is appropriate if Halfacre establishes good cause for

the failure to comply with relevant procedural rules. When a petitioner fails to perfect an

appeal, the burden is on the petitioner, even if he is proceeding pro se, to establish good

cause for failure to comply with the procedural rules. Clemons v. State, 2014 Ark. 454, at 3,

446 S.W.3d 619, 621 (per curiam). Here, because the circuit clerk refused to file mark the

order denying the in forma pauperis petition, Halfacre has demonstrated good cause for

failure to perfect his appeal.

Furthermore, we find that proper consideration cannot be given to Halfacre’s appeal

from the denial of his petition to proceed in forma pauperis without a certified, file-marked

copy of the order from which this appeal is taken. Pursuant to Arkansas Rule of Civil

Procedure 58 (2015), an order or decree is effective only when it is entered in accordance

with Administrative Order No. 2. Administrative Order No. 2(b)(2)(2015), states in

pertinent part that the clerk shall denote the date and time an order is filed by stamping or

otherwise marking it with the date and time and the word “filed.” See Mitchell v. Post-Prison

Transfer Board, 2015 Ark. 140, at 3. We have made it clear that a circuit court is charged

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with filing its orders so that an appeal can be taken if a party desires to appeal. Penn v.

Gallagher, 2015 Ark. 472, at 4 (per curiam); see also Penn v. Gallagher, 2015 Ark. 354 (per

curiam). A petitioner has the right to appeal an adverse ruling on a petition for post-

conviction relief, including a petition for a writ of habeas corpus. See Leavy v. Norris, 324

Ark. 346, 348, 920 S.W.2d 842, 842-43 (1996) (per curiam). This court has held that a

circuit court may not prevent an appeal from an adverse decision by implementing

procedures that prevent indigent petitioners from filing timely appeals. See White v. State,

373 Ark. 415, 418, 284 S.W.3d 64, 66 (2008) (per curiam). This is so because to the extent

that a right of appeal is granted, equal protection applies and procedures that would result

in a violation of equal protection are prohibited. Id.

Furthermore, the Arkansas Rules of Appellate Procedure make it possible to correct

and supplement records solely on the initiative of the either the appellate court or the circuit

court. Arkansas Rule of Appellate Procedure –Civil 6(e)1 (2015), states in pertinent part

that an appellate court may direct, on its own initiative, that a material omission shall be

corrected, and if necessary, that a supplemental record be certified and transmitted. See Gore

v. Heartland, 356 Ark. 665, 668, 158 S.W.3d 123, 125 (2004). Also pursuant to this rule of

appellate procedure, the circuit court has continuing jurisdiction to correct and supplement

the record. Therefore, even though the circuit court loses jurisdiction over the parties and

subject matter of the litigation once the record is lodged, it has the jurisdiction as well as the

responsibility to settle the record on appeal. Id. at 669, 158 S.W.3d at 125; Ark. R. App.

P.–Civ. 6(e)(1) (2015). The record must be supplemented with file-marked copies of the

order as well as file-marked copies of any of the relevant pleadings upon which the circuit

3 Cite as 2016 Ark. 71

court relied. Because the right to proceed in forma pauperis in civil matters depends on a

determination that the underlying action constitutes a colorable cause of action, a file-

marked copy of Halfacre’s habeas corpus petition is necessary to a determination of this

appeal. Ark. R. Civ. P. 72(c) (2015); Stanley v. Coomer, 2014 Ark. 338, at 1–2 ,439 S.W.3d

54, 55 (per curiam).

Appellant’s motion for Rule on the Clerk is granted and the Clerk is directed to file

the record tendered on appeal.

Remanded with direction for submission within ten days of a certified file-marked

order denying the in forma pauperis petition, together with submission of certified file-

marked pleadings relevant to a determination of this appeal, including the petition for a writ

of habeas corpus.