Romero v. State

Mar 29, 2012
CR10-600
Versions:2012 Ark. 133

REVERSED AND REMANDED.

PER CURIAM

Appellants Angel Yonis Romero and Conrado Giovany Cordona-Duarte appeal an order of the Crawford County Circuit Court denying their pro se petition for postconviction relief, pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2011), on procedural grounds for prematurely filing their petition. For reversal, appellants argue that the circuit court erred in its ruling. We agree that the petition was timely, and we reverse and remand for proceedings in accordance with our decision.

A Crawford County jury convicted appellants of possession of cocaine with intent to deliver and possession of drug paraphernalia. Each appellant received a sentence of 480 months for possession with intent to deliver and a sentence of 120 months for possession of drug paraphernalia. These sentences ran consecutively. The Arkansas Court of Appeals affirmed their felony drug convictions, as well as the convictions of their co-defendant, Luis Camacho-Mendoza, in Camacho-Mendoza v. State, 2009 Ark. App. 597, 330 S.W.3d 46. On October 6, 2009, the court of appeals issued the mandate for the appeal. The clerk’s certificate, however, named only Camacho-Mendoza as appellant.1 On November 24, 2009, appellants filed their Rule 37.1 petition in the Crawford County Circuit Court. On February 22, 2010, the circuit court entered an order denying the petition as prematurely filed because no mandate listing appellants had been filed at that time with the Crawford County Circuit Clerk. In its order, the circuit court stated:

[T]he court does hereby find that the Rule 37 petition was filed on November 24, 2009. The court’s file reflects as of that date that a mandate has not been filed with the Crawford County Circuit Clerk for either defendant. A Rule 37 petition must be filed within 60 days of the filing of the mandate. Therefore, the court does hereby deny the Rule 37 petition as being premature.

On February 22, 2010, the clerk for the court of appeals signed an “amended mandate,” naming all three co-defendants, and the amended mandate was filed by the circuit clerk on February 24, 2010. Appellants appeal the February 22, 2010 order.

On appeal, appellants argue that the mandate issued on October 6, 2009, and that the circuit court misinterpreted Arkansas Rule of Criminal Procedure 37.2(c) (2010). In response, the State acknowledges that the circuit court improperly dismissed the petition for the reason that no mandate had been filed with the circuit court. However, the State asserts that the circuit court’s ruling was correct—albeit for a different reason—in that appellants’ names were not included in the October 6, 2009 mandate.

When there is an appeal from a judgment of conviction, a petition for relief must be

filed in the circuit court “within sixty (60) days of the date the mandate was issued by the appellate court.” Ark. R. Crim. P. 37.2(c). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, a trial court lacks jurisdiction to grant postconviction relief. Watson v. State, 2011 Ark. 202 (per curiam); Sims v. State, 2011 Ark. 135 (per curiam); Trice v. State, 2011 Ark. 74 (per curiam); Gardner v. State, 2010 Ark. 344 (per curiam). We have held that a trial court cannot hold a Rule 37.1 petition that was prematurely filed in abeyance awaiting the mandate of the appellate court. Tapp v. State, 324 Ark. 176, 920 S.W.2d 483 (1996).2

In the present case, appellants filed their Rule 37.1 petition forty-nine days after the date that the court of appeals issued the original mandate for the appeal on October 6, 2009. The clerk’s certificate for the mandate only named appellants’ co-defendant, Camacho-Mendoza, and did not name appellants, but the clerical error did not alter the fact that the court had issued its mandate for the appeal filed by all three defendants. The “amended mandate” that named appellants was a corrected clerk’s certificate that was signed by the clerk on February 22, 2010, the same day that the circuit court entered its order. That certificate should have reflected the fact, as does the court’s docket, that the court of appeals issued only one mandate, on October 6, 2009.

The State contends that appellants fail to argue on appeal that the amended mandate related back to the original mandate. The appellants clearly do argue that the correct date of the issuance of the mandate was October 6, 2009. Although the trial court may not have had

the correct information available to it upon which to make a decision at the time that it issued the order, appellants’ petition was timely filed. There was clear error, due to a clerical error by the clerk of the appellate court, in the trial court’s finding that the petition was not timely filed. We therefore reverse and remand for proceedings in accordance with our holding.

Reversed and remanded.

Notes

1
The original mandate is not contained in the record, but we take judicial notice of it, because it is contained in the public records of the clerk for this court and the court of appeals. See Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009).
2
Rule 37.2 has since been amended to provide that a petition filed after the conviction is affirmed but before the mandate issues is treated as filed on the day after the mandate issues. Ark. R. Crim. P. 37.2(c) (2011).