PRO SE
APPEAL FROM THE MILLER COUNTY CIRCUIT COURT; PRO SE MOTION
FOR LEAVE TO FILE SUPPLEMENTAL ADDENDUM [NO. 46CR-85-108]
HONORABLE CARLTON D. JONES, JUDGE
KAREN
R. BAKER, ASSOCIATE JUSTICE
Appellant
Kelley Patrick Mills lodged in this court an appeal of a
January 25, 2018 order denying his pro se petition for writ
of error coram nobis. The State filed its brief in which it
contends that this court does not have jurisdiction over the
appeal because the notice of appeal that Mills filed as to
the January 25, 2018 order was not timely. Mills then filed a
motion in which he seeks leave to file a reply brief with a
supplemental addendum so that he may include evidence in
support of his claim that this court should permit him to
proceed with the appeal. Because the record that is before us
does not support a basis for jurisdiction over the appeal, we
dismiss the appeal and the motion is moot.
Whether
an appellant has filed a timely and effective notice of
appeal is always an issue before the appellate court, and
absent an effective notice of appeal, the court lacks
jurisdiction to consider the appeal and must dismiss it.
McJames v. State, 2010 Ark. 74. Under Arkansas Rule
of Appellate Procedure-Criminal 2(a) (2017), Mills was
required to file his notice of appeal within thirty days of
the date the order was entered. The deadline for filing fell
on Saturday, February 24, 2018, and in accord with Arkansas
Rule of Appellate Procedure-Criminal 17, Mills was required
to file the notice of appeal no later than Monday, February
26, 2018. The notice of appeal was not filed until February
28, 2018.
We note
that there is a copy of an envelope in the record that
indicates the notice of appeal was posted on the last day to
file the notice. Our current rules of procedure provide an
exception to the filing deadline for a notice of appeal of a
judgment of conviction in circuit court or a circuit court
order that denied postconviction relief on a petition under
Arkansas Rule of Criminal Procedure 37.1. Under those
provisions, the notice of appeal will be deemed filed on the
date that an incarcerated inmate deposited his or her
petition in the prison facility's legal-mail system,
provided that the conditions set out in the rules have been
satisfied. Ark. R. App. P.-Crim. 2(b)(3); see also
Ark. R. Crim. P. 37.2(g) (2017). Because this was an appeal
of the denial of a petition for a writ of error coram nobis,
the exception is not applicable under the circumstances.
As the
notice of appeal was not timely filed and no exception is
applicable, the lodging of the record in this court was
clerical error. Accordingly, we lack jurisdiction to consider
Mills's appeal and dismiss.
Appeal
dismissed; motion moot.
Hart,
J., dissents.
Josephine Linker Hart, Justice, dissenting.
When
our Rules of Criminal Procedure are silent on a particular
question, the general rule is to use our civil rules to
supplement them. See, e.g., State v. Rowe,
374 Ark. 19, 285 S.W.3d 614 (2008) (supplementing the
criminal rules with Rule 60 of the Arkansas Rules of Civil
Procedure); see also Sanders v. State, 352 Ark. 16,
98 S.W.3d 35 (2003) (applying Arkansas Rule of Civil
procedure 56 in a postconviction case). Accordingly, while it
is true that Arkansas Rule of Appellate Procedure -Criminal
(2)(b)(3) does not speak to Mr. Mills's situation, the
gap in our rules must be supplemented by the civil
rules.[1]
Under
Rule (5)(b)(2) of the Arkansas Rules of Civil Procedure,
"service by mail is presumptively complete upon
mailing." It is not disputed that Mr. Mills placed his
notice of appeal in the mail within the time required by Rule
42 of the Arkansas Rules of Appellate Procedure -Criminal. We
should therefore accept Mr. Mills's appeal and take up
his motions.
I
respectfully dissent.
---------