MOTION FOR EXTENSION OF TIME TO FILE BRIEF [PULASKI COUNTY
CIRCUIT COURT, SECOND DIVISION, NO. 60CR-06-2226] HONORABLE
CHRIS PIAZZA, JUDGE
COURTNEY HUDSON GOODSON, Associate Justice
Darwin Gaye pleaded guilty to rape, residential burglary, and
kidnapping, for which he was sentenced to an aggregate
sentence of 1080 months' imprisonment in the Arkansas
Department of Correction (ADC) as reflected in a
judgment-and-commitment order filed on January 24, 2007. Gaye
seeks to appeal the denial of a pro se petition for
permission to proceed with a belated appeal that he filed in
the trial court. Gaye has filed a motion for extension of
time to file his brief. We need not address the merits of the
motion because it is clear from the record that Gaye cannot
prevail on appeal. We dismiss the appeal, and the motion for
extension of time to file a brief is thereby rendered moot.
Rule of Appellate Procedure -Criminal (2)(a) (2017) provides
that a notice of appeal must be filed within thirty days of
the date of entry of the order from which the appeal is
taken. This court "may act upon and decide a case in
which the notice of appeal was not given or the transcript of
the trial record was not filed in the time prescribed, when a
good reason for the omission is shown by affidavit."
Ark. R. App. P.-Crim. 2(e). If a notice of appeal is not
timely filed, the burden is on the petitioner to establish
good cause for the failure to comply with proper procedure.
Matar v. State, 2017 Ark. 278. Only the supreme
court has authority to grant a belated appeal. See Gray
v. State, 277 Ark. 442, 642 S.W.2d 306 (1982);
Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979).
filed a motion for writ of error coram nobis in the trial
court alleging that his plea had not been voluntary, and the
trial court entered an order denying the motion on August 3,
2016. Gaye filed the petition for permission to file belated
appeal in the trial court, claiming that his failure to file
a timely notice of appeal was the fault of the Pulaski County
Circuit Clerk because the clerk failed to promptly mail him a
copy of the order, which he claimed was mailed on September
9, 2016. The trial court denied Gaye's petition
for permission to file belated appeal, noting that there is
no statutory requirement that the circuit clerk
"promptly forward" the denial order to Gaye on the
denial of a petition for writ of error coram
however, the trial court was without authority to rule on
Gaye's petition for belated appeal. Motions for belated
appeal should be filed in this court. See Ark. R.
App. P.-Crim. 2(e); see also Gray, 277 Ark. 442, 642
S.W.2d 306 (addressing motions for belated appeal under
Arkansas Rule of Criminal Procedure 36.9, which was
superseded by Rule 2(e) of the Rules of Appellate
Procedure-Criminal). Because only this court has the
authority to grant a belated appeal, the trial court lacked
jurisdiction to decide the motion below, and the appeal must
dismissed; motion moot.
Josephine Linker Hart, Justice, concurring.
concur with the majority that this appeal should be
dismissed, but I write separately to address a separate basis
that would warrant dismissal of Gaye's appeal. While the
majority is correct that the trial court lacked jurisdiction
to rule upon Gaye's Petition for Permission to File
Belated Appeal, based upon the record before us, it appears
that the trial court also lacked jurisdiction to entertain
for Error Coram Nobis, which was originally filed in the
trial court. As a general matter and in this case,
petition for a writ of error coram nobis must be filed and
granted in this court before the trial court regains
jurisdiction to consider any such argument by the petitioner.
See, e.g., Howard v. State, 2012 Ark. 177,
403 S.W.3d 38.
 The trial court's order in this
case was entered on August 18, 2017. Gaye's notice of
appeal, filed on September 14, 2017, references the circuit
court's order entered on "9-11-2017." When it
is clear what order the appellant was appealing from given
the issues raised in the notice of appeal, an inaccurate date
listed for the order appealed from in the notice of appeal
was merely a scrivener's error. See Edwards v.
State, 2014 Ark. 185 (per curiam). Here, it is clear
that Gaye intended to appeal the trial court's August 18,
2017 order, and Gaye's notice of ...