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Berks v. State

Supreme Court of Arkansas

May 21, 2015

JONATHAN BERKS, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

GARLAND COUNTY CIRCUIT COURT, NO. 26CR-10-248. HONORABLE JOHN HOMER WRIGHT, JUDGE.

JONATHAN BERKS, PETITIONER, Pro se.

OPINION

PRO SE MOTION FOR BELATED APPEAL

Page 290

PER CURIAM

Petitioner Jonathan Berks filed a motion in this court in which he requests permission to proceed with a belated appeal of the dismissal of his timely petition under Arkansas Rule of Criminal Procedure 37.1 (2014). Because Berks was not provided timely notice of an order that disposed of a motion for a ruling on omitted issues, the motion is granted.

Berks's verified Rule 37.1 petition challenged a judgment reflecting his conviction on charges of second-degree murder and aggravated residential burglary and his sentences of 360 months' imprisonment on each charge, for an aggregate sentence of 720 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Berks v. State, 2013 Ark.App. 203, 427 S.W.3d 98.

Berks filed a motion for leave to amend the Rule 37.1 petition, along with an amended petition, before the trial court acted on the original petition. The court granted the motion to amend on June 27, 2013. It dismissed the Rule 37.1 petition by order entered December 27, 2013. On January 23, 2014, Berks filed a motion requesting modification of the order in which he contended that the trial court had overlooked issues presented in the amended petition. The trial court denied the motion on February 7, 2014.

In his motion for belated appeal, Berks contends that his motion requesting modification of the order extended the time to file the notice of the appeal from the order dismissing the Rule 37.1 petition. He also contends that he did not receive a copy of the order denying the motion until the extended time for filing a notice of appeal had expired. He asserts that he did not receive a copy of the order until March 15, 2014, and that Arkansas Rule of Criminal Procedure 37.3(d) required the court to

Page 291

promptly mail a copy of the order denying the motion to him.

Arkansas Rule of Appellate Procedure--Criminal 2(a) requires that a notice of appeal must be filed within thirty days of the date that an order denying a petition for postconviction relief was entered. A petitioner has the right to appeal a ruling on a petition for postconviction relief. Bean v. State, 2014 Ark. 440 (per curiam). If a petitioner fails to file a timely notice of appeal, however, a belated appeal will not be ...


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