#### Clenton WITHERS a/k/a Clinton Withers v. STATE of Arkansas

RC 89-28

778 S.W.2d 608

Supreme Court of Arkansas

Opinion delivered October 30, 1989

*329 Appellant, pro se.

Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

Per Curiam.

On April 14, 1987, the petitioner Clenton Withers was found guilty by a jury of manslaughter and sentenced to ten years imprisonment. A timely notice of appeal was filed by his retained attorney, James P. Massie. The record was not lodged on appeal, and petitioner Withers has now filed a motion for rule on the clerk, seeking to have the record prepared for filing despite the delay. Mr. Massie has submitted an affidavit in response to the motion in which he concedes that he filed a notice of appeal but contends that the record was never prepared and lodged here because Withers refused to pay the cost of preparing it.

On July 16, 1987, the trial court noted on its docket that petitioner had not made a deposit on the cost of preparing the transcript and ordered him committed to the Arkansas Department of Correction to begin serving his sentence. The court also rejected an affidavit of indigency submitted by petitioner, noting that he was not indigent and had spent his available funds rather than pay his attorney and the court reporter. The court further said that petitioner’s conduct in not perfecting the appeal was “by design and purpose.”

The motion for rule on the clerk is denied. The circuit court made a finding that the petitioner was not indigent and through his own actions made the decision not to appeal. Petitioner does not address this finding. We do not know if the *330court made a finding after a hearing, at which the defendant was present, or whether it was made in his absence. In any event, the petitioner must overcome the presumption the order was properly entered.

Motion denied without prejudice.