Raymond Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-890

NOT DESIGNATED FOR PUBLICATION

RAYMOND JOHNSON

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered February 23, 2006

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT OF CONVICTION [CIRCUIT COURT OF MISSISSIPPI COUNTY, CHICKA-SAWBA DISTRICT, CR 2003-351, HON DAVID GOODSON, JUDGE]

MOTION DISMISSED

PER CURIAM

On January 25, 2005, Raymond Johnson was found guilty of murder in the first degree and sentenced to 144 months' imprisonment. No appeal was taken from the judgment.

On August 15, 2005, the attorney who had represented Johnson at trial filed a motion in this court seeking leave to proceed with an appeal. Counsel said in the motion that he had fully advised Johnson of his right to appeal and of the need to inform him if he desired to appeal within the thirty-day period from the date of judgment to file a notice of appeal under Rule 4(a) of the Rules of Appellate Procedure-Civil. He appended copies of two letters from him to Johnson dated within the thirty-day period reminding him of the deadline. Counsel averred that Johnson did not contact him about an appeal. Nevertheless, when it came to counsel's attention that Johnson had filed a untimely pro se notice of appeal, he elected to file the motion to proceed with a belated appeal. This court denied the motion. Johnson v. State, CR 05-890 (Ark. September 8, 2005) (per curiam order). On February 6, 2006, Johnson, acting pro se, filed the instant motion in which he again asks to be permitted to proceed with a belated appeal.1 Petitioner Johnson concedes in the motion that he did not inform counsel of his desire to appeal within the time allowed to file a timely notice.

It is well settled that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty-day period to file a timely notice of appeal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997) (per curiam); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988) (per curiam). Even if petitioner had not conceded that he failed to inform counsel of his desire to appeal, the instant motion would be subject to dismissal in that a convicted defendant is not entitled to proceed with a subsequent motion after a request to proceed with a belated appeal has been denied. Hughes v. State, 284 Ark. 177, 680 S.W.2d 101 (1984) (per curiam).

Motion dismissed.

Imber, J., not participating.

1 For clerical purposes, the pro se motion was filed under the docket number assigned to the earlier motion filed by counsel.