WILMOTH V. STATE

Jun 24, 2010

CR-10-512

Versions:2010 ARK. 315

MOTION FOR BELATED APPEAL TREATED AS MOTION FOR RULE ON CLERK AND DENIED; MOTION FOR APPOINTMENT OF COUNSEL MOOT.

PER CURIAM

In 2008, Michael Shane Wilmoth was found guilty by a jury of delivery of a controlled substance. He was sentenced as a habitual offender to 300 months’ imprisonment. A fine of $1,000 was also imposed. The Arkansas Court of Appeals affirmed. Wilmoth v. State, CACR 08-1102 (Ark. App. May 27, 2009) (unpublished). The court of appeals‘s mandate was issued June 16, 2009.

On August 20, 2009, sixty-five days after the mandate was issued, petitioner filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The petition was denied on September 16, 2009. Petitioner timely filed a notice of appeal from the order, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Arkansas Rule of Appellate Procedure–Criminal 4(b) (2010).¹ He now seeks leave to lodge the record belatedly. As the notice of appeal was timely, we treat the motion as a motion for rule on clerk pursuant to Arkansas Supreme Court Rule 2-2(b) (2010) to perfect the appeal rather than as a motion for belated appeal. Tillman v. State, 2010 Ark. 103 (per curiam); Ester v. State, 2009 Ark. 442 (per curiam) (citing Mitchem v. State, 374 Ark. 157, 386 S.W.3d 679 (2008) (per curiam)); Marshall v. State, 2009 Ark. 420 (per curiam).

We need not consider petitioner‘s grounds for rule on clerk because it is clear from the record that he could not prevail on appeal if the motion were granted. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Tillman, 2010 Ark. 103; Pierce v. State, 2009 Ark. 606 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); see also Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam).

Arkansas Rule of Criminal Procedure 37.2(c) (2010) provides that when a direct appeal is taken following a conviction, “a petition claiming relief under this rule 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); Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam); see also Tillman, 2010 Ark. 103. Time limitations in Rule 37.2(c) are jurisdictional in nature, and, where they are not met, a trial court lacks jurisdiction to grant postconviction relief. DeLoach v. State, 2010 Ark. 79 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989)); see also Croft v. State, 2010 Ark. 83 (per curiam). There is no provision in the rule for a belated petition. See Gray v. State, 2010 Ark. 216 (per curiam). If a trial court lacks jurisdiction as the result of the petitioner‘s failure to comply with Rule 37.2(c), this court likewise lacks jurisdiction to reach the merits of an appeal pertaining to the untimely petition. Carter, 2010 Ark. 231, 364 S.W.3d 46; see also Lawhon v. State, 328 Ark. 335, 942 S.W.2d 864 (1997) (per curiam).

Petitioner here did not timely file a Rule 37.1 petition in the trial court. Accordingly, the motion to proceed with an appeal from the order is denied. The motion for appointment of counsel is moot.

Motion for belated appeal treated as motion for rule on clerk and denied; motion for appointment of counsel moot.

CORBIN, J., not participating.

Notes

The record was tendered 154 days after the notice of appeal was filed.