KE'ONDRA M. CHESTANG APPELLANT
RICHARD MAYS, CHAIRMAN, ARKANSAS PAROLE BOARD; AND M. GRAYDON, PAROLE OFFICER, CUMMINS UNIT APPELLEES
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION;
MOTION FOR ENFORCEMENT OF STATUTE [NO. 60CV-18-840] HONORABLE
TIMOTHY DAVIS FOX, JUDGE
Ke'Ondra M. Chestang, pro se appellant.
Rutledge, Att'y Gen., by: Reid P. Adkins, Ass't
Att'y Gen., for appellee.
RHONDAK.WOOD, Associate Justice
Ke'ondra M. Chestang appeals from an order denying his
pro se petition for writ of mandamus and a subsequent motion
for modification of that order. Chestang filed the petition
for writ against the chairman of the Arkansas Parole Board
and a parole officer. Chestang has additionally filed a
motion for enforcement of statute that contains arguments he
also raised in petition to the circuit court. Because
Chestang's notice of appeal was untimely, we dismiss the
appeal and find the motion is moot.
mandamus petition sought an order directing compliance with
what he alleged were required procedures concerning his
transfer eligibility. The circuit court denied the petition
on February 15, 2018. Under Arkansas Rule of Appellate
Procedure- Civil 4 (2017), Chestang was required to file his
notice of appeal within thirty days of the date of the entry
of the order. Chestang filed a notice of appeal on April 10,
2018, which was fifty-four days after the order. Absent an
effective notice of appeal, this court lacks jurisdiction to
consider the appeal. Worsham v. Day, 2017 Ark. 192,
519 S.W.3d 699.
Chestang did file a motion to amend the order denying his
writ of mandamus under Arkansas Rule of Civil Procedure
52(b), it was not timely. Rule 52(b) requires a party to file
a motion to amend within ten days after entry of the
judgment. If timely filed, the motion would extend the time
for filing a notice of appeal. Ark. R. App. P.-Civ 4(b).
Because the period is less than fourteen days, the time for
filing a Rule 52 motion is calculated excluding weekends and
holidays in accord with Rule 6(a) of the Arkansas Rules of
Civil Procedure. See Davis v. Davis, 2016 Ark. 64,
487 S.W.3d 803. In this case, the last day for filing a
motion under Rule 52 was March 2, 2018. Chestang did not file
his motion until March 12, and thus, it was not timely and
did not extend the time for filing his notice of appeal.
Josephine Linker Hart, Justice, dissenting.
dissent. While the majority is correct that March 2, 2018 is
the last day that Chestang could have filed his Rule 52(b)
motion with the circuit court, and that Chestang's motion
here shows a filemark of March 12, 2018, the majority is
incorrect to dispose of Chestang's appeal without more.
Instead, this court should remand for a hearing pursuant to
Rule 6(e) of the Arkansas Rules of Appellate Procedure-Civil.
This would allow the parties to make a record and the circuit
court to make a determination as to the date that
Chestang's Rule 52(b) motion was actually delivered to
the Pulaski County Circuit Court.
any difference arises as to whether the record truly
discloses what occurred in the circuit court … the
appellate court … on its own initiative, may direct
that the omission or misstatement be corrected, and if
necessary, that a supplemental record be certified and
transmitted." Ark. R. App. P. 6(e)-Civil. "Though a
filing mark is evidence of the filing of the document, the
mark in and of itself is not an essential element of the
act." Henard v. St. Francis Election Comm., 301
Ark. 459, 461, 784 S.W.2d 598, 599 (1990). "The reason
is that while it is proper for the clerk when he receives
papers to indorse thereon the date of the filing, such
indorsement is not the filing, but is simply an evidence of
such filing. A paper is said to be filed when it is
delivered to the proper officer and by him received
to be kept on file." Hogue v. Hogue, 137 Ark.
485, 208 S.W. 579, 582 (1919) (emphasis added).
the filemark on Chestang's Rule 52(b) motion shows a date
of March 12, 2018, Chestang's signature on that motion
reflects a date of February 28, 2018, nearly two weeks
earlier, and notably before the March 2, 2018 deadline. If
Chestang's motion was signed and mailed from the Cummins
Unit on February 28, 2018, it would not be surprising to
learn that the motion was delivered to the Pulaski County
Courthouse, barely an hour's drive away, by March 2,
2018. On the other hand, a stretch of nearly two weeks seems
to be a questionably long period of time for the same
delivery. A court has a duty to determine whether or not it
has jurisdiction to consider the matter ...