The appellant, Calvin Porter, was convicted of capital murder and sentenced to die by lethal injection. We affirmed his conviction and sentence in Porter v. State,
The Supreme Court denied certiorari in Porter v. Arkansas,
In the trial court, the State filed a motion to dismiss Porter’s petition as untimely. The court granted the motion. Porter appealed the dismissal of his petition to this Court. In his brief, Porter contended that his petition should not have been considered untimely because he did not receive “actual notice” from the Clerk of the Arkansas Supreme Court or from the Jefferson County Circuit Clerk that the appellate mandate was issued on April 1, 1996. He argued that due process required this Court to change its practice in order to insure that the appellant receives actual notice of the issuance of the mandate.
In Porter v. State,
Specifically, Porter’s brief indicates that the Director of the Arkansas Capital Resource Center, A1 Schay, represented Porter before the Supreme Court. While Porter’s petition for a writ of certiorari was pending, however, funding for the Arkansas Capital Resource Center was terminated. Under these circumstances, it may well be that Mr. Schay’s representation of Porter ended when the funding for the resource center ceased, and that Porter did not have an attorney at the time the mandate was issued. More importantly, it may well be the case that the delay in filing Porter’s petition was caused by his belief that Mr. Schay, as his attorney, would notify him of the disposition of his certiorari petition and the issuance of the mandate and would file the necessary Rule 37 petition.
We also recognized that since the date of Porter’s conviction, Rule 37.5 had been promulgated and put into practice. Rule 37.5 requires, within twenty-one days of the issuance of the appellate mandate, an assessment of the availability of counsel for defendants sentenced to death. The existence of this rule, coupled with the ambiguous circumstances of Porter’s representation at the time the mandate was issued from his direct appeal, motivated us to remand the case for a hearing to develop facts surrounding the status of Porter’s legal representation on April 1, 1996, and his understanding regarding the status of that representation.
On August 26, 1999, the Jefferson County Circuit Court entered an order in which it summarized the facts that were developed during the hearing. The court essentially found that because A1 Schay had not taken any formal steps to withdraw as the attorney of record for Porter, he was still representing Porter at the time that the appellate mandate was issued. The court also found that while Mr. Schay believed that the closing of the Resource Center terminated his representation of Porter, Porter himself did not share that understanding. The court’s order stated that “Mr. Schay never told [Porter] that he did not represent him until June 11, 1996, after the time for fifing the Rule 37 had expired.” The court further found, however, that despite Porter’s justifiable reliance on Mr. Schay, his petition was untimely filed, and that the court, according to the jurisdictional nature of the rule, had no choice but to take the harsh action of dismissing the petition. Porter has now appealed that decision and the case is submitted once again to this Court to determine whether the trail court erred in holding that it lacked jurisdiction over the appellant’s petition for relief which was filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure.
Rule 37.2(c) clearly states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. We have held that the filing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Petree v. State,
However, while there is no constitutional right to a post-conviction proceeding, when a State undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Larimore v. State,
In the instant case, appellant was on death row; further, his petition was filed only seventeen days late and under ambiguous circumstances surrounding his legal representation. As previously stated, this Court was concerned with the unusual circumstances in this case when it remanded the case to the circuit court for a fact-finding hearing. Porter v. State,
Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1997) (Arkansas Effective Death Penalty Act of 1997), where the General Assembly expressly noted that the purpose of the Act was to comply with federal law by instituting a comprehensive state court review. Ark. Code Ann. § 16-91-204 (Supp. 1997). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. We held, in Porter v. State,
We have previously granted an appellant leave to file a belated appeal when counsel assumed full responsibility for the delay. See Whitney v. State,
We hold that good cause has been established in the instant case for petitioner’s failure to timely file his petition for postconviction relief under Rule 37. In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.
Reversed and remanded.