Cite as 2016 Ark. 71

No. CV-15-958

KENNY HALFACRE

APPELLANT

V.

WENDY KELLEY, DIRECTOR

ARKANSAS DEPARTMENT OF 

CORRECTION

APPELLEE

Opinion Delivered February 18, 2016

PRO SE MOTION FOR RULE ON 

CLERK

[LINCOLN COUNTY, NO._______]

HONORABLE JODI RAINES 

DENNIS, JUDGE

MOTION GRANTED; REMANDED.

PER CURIAM 

 

This is an appeal from an order denying a petition to proceed in forma pauperis in 

the circuit court. On September 25, 2015, the appellant, Kenny Halfacre tendered an appeal 

record to the clerk of this court which was rejected because it lacked a file-marked copy of 

the order from which Halfacre appealed. Pending before this court is Halfacre’s motion for 

rule on the clerk. For the reasons stated below, the motion is granted and the record 

remanded to the circuit court. 

In his motion for rule on clerk, Halfacre contends that he had submitted to the circuit 

court a petition for habeas corpus relief and asked the court for permission to proceed in 

forma pauperis. The record tendered on appeal demonstrates that the circuit court issued 

an order that denied the in forma pauperis petition. This order contained a handwritten 

date of July 14, 2015, but it was not file marked. In addition, the tendered record also 

lacked a copy of the petition to proceed in forma pauperis, and, while the tendered record 

contained an affidavit submitted by Halfacre in support of the petition to proceed in forma 

SUPREME COURT OF ARKANSAS.
Cite as 2016 Ark. 71

2

pauperis, the affidavit was not file marked. The record reflects that a docket number was 

not assigned, and the action filed by Halfacre was identified by the circuit clerk as “unfiled 

inmate pleadings.” Halfacre submitted a timely notice of appeal which was file marked with 

a date of August 14, 2015. Filing a timely notice of appeal is sufficient to confer appellate 

jurisdiction. Smith v. Estate of Howell, 372 Ark. 186, 190, 272 S.W.3d 106, 109 (2008). On 

August 27, 2015, the circuit court issued an order granting Halfacre’s petition to proceed in 

forma pauperis with this appeal. That order was also file marked. 

 A motion for rule on the clerk is appropriate if Halfacre establishes good cause for 

the failure to comply with relevant procedural rules. When a petitioner fails to perfect an 

appeal, the burden is on the petitioner, even if he is proceeding pro se, to establish good 

cause for failure to comply with the procedural rules. Clemons v. State, 2014 Ark. 454, at 3, 

446 S.W.3d 619, 621 (per curiam). Here, because the circuit clerk refused to file mark the 

order denying the in forma pauperis petition, Halfacre has demonstrated good cause for 

failure to perfect his appeal. 

Furthermore, we find that proper consideration cannot be given to Halfacre’s appeal 

from the denial of his petition to proceed in forma pauperis without a certified, file-marked 

copy of the order from which this appeal is taken. Pursuant to Arkansas Rule of Civil 

Procedure 58 (2015), an order or decree is effective only when it is entered in accordance 

with Administrative Order No. 2. Administrative Order No. 2(b)(2)(2015), states in 

pertinent part that the clerk shall denote the date and time an order is filed by stamping or 

otherwise marking it with the date and time and the word “filed.” See Mitchell v. Post-Prison 

Transfer Board, 2015 Ark. 140, at 3. We have made it clear that a circuit court is charged 
Cite as 2016 Ark. 71

3

with filing its orders so that an appeal can be taken if a party desires to appeal. Penn v. 

Gallagher, 2015 Ark. 472, at 4 (per curiam); see also Penn v. Gallagher, 2015 Ark. 354 (per 

curiam). A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief, including a petition for a writ of habeas corpus. See Leavy v. Norris, 324 

Ark. 346, 348, 920 S.W.2d 842, 842-43 (1996) (per curiam). This court has held that a 

circuit court may not prevent an appeal from an adverse decision by implementing 

procedures that prevent indigent petitioners from filing timely appeals. See White v. State, 

373 Ark. 415, 418, 284 S.W.3d 64, 66 (2008) (per curiam). This is so because to the extent 

that a right of appeal is granted, equal protection applies and procedures that would result 

in a violation of equal protection are prohibited. Id. 

Furthermore, the Arkansas Rules of Appellate Procedure make it possible to correct 

and supplement records solely on the initiative of the either the appellate court or the circuit 

court. Arkansas Rule of Appellate Procedure –Civil 6(e)1 (2015), states in pertinent part 

that an appellate court may direct, on its own initiative, that a material omission shall be 

corrected, and if necessary, that a supplemental record be certified and transmitted. See Gore 

v. Heartland, 356 Ark. 665, 668, 158 S.W.3d 123, 125 (2004). Also pursuant to this rule of 

appellate procedure, the circuit court has continuing jurisdiction to correct and supplement 

the record. Therefore, even though the circuit court loses jurisdiction over the parties and 

subject matter of the litigation once the record is lodged, it has the jurisdiction as well as the 

responsibility to settle the record on appeal. Id. at 669, 158 S.W.3d at 125; Ark. R. App. 

P.–Civ. 6(e)(1) (2015). The record must be supplemented with file-marked copies of the 

order as well as file-marked copies of any of the relevant pleadings upon which the circuit 
Cite as 2016 Ark. 71

4

court relied. Because the right to proceed in forma pauperis in civil matters depends on a 

determination that the underlying action constitutes a colorable cause of action, a filemarked copy of Halfacre’s habeas corpus petition is necessary to a determination of this 

appeal. Ark. R. Civ. P. 72(c) (2015); Stanley v. Coomer, 2014 Ark. 338, at 1–2 ,439 S.W.3d 

54, 55 (per curiam). 

Appellant’s motion for Rule on the Clerk is granted and the Clerk is directed to file 

the record tendered on appeal. 

Remanded with direction for submission within ten days of a certified file-marked 

order denying the in forma pauperis petition, together with submission of certified filemarked pleadings relevant to a determination of this appeal, including the petition for a writ 

of habeas corpus.