Enrico Williams v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 14, 2000

ENRICO WILLIAMS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-741

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF and FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF HEMPSTEAD COUNTY, CR 99-139-1]

MOTIONS MOOT; APPEAL DISMISSED

On November 18, 1999 judgment was entered reflecting that Enrico Williams had pleaded guilty to possession of a controlled substance and been placed on five years' probation. Williams subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. On April 7, 2000, the following order was entered:

On March 15, 2000, Defendant appeared and

asked to set aside his guilty plea of November 15, 1999.

The prosecutor did not object and the court told Defendant

his request was granted. The Public Defender was appointed

for Defendant and shortly Defendant reappeared and asked

to return his case to status quo; i.e., to withdraw his request

to set aside. By agreement that request was granted.

It is so ordered.

Williams has appealed to this court from the order permitting him to withdraw the Rule 37 petition. Appellant Williams seeks an extension of time to file the appellant's brief and appointment of counsel.

The motions are moot and the appeal is dismissed inasmuch as the trial court did not enter an adverse ruling on the Rule 37 petition; in fact, it granted the petition and then granted appellant's request to withdraw the Rule 37 petition and allow the original judgment to stand. In the April 7, 2000 order which is the only order contained in the record to mention the Rule 37 petition, the court noted that it had granted the Rule 37 petition on March 15, 2000, and vacated the judgment and then reinstated it at appellant's request. The record does not, however, contain any order entered after March 15, 2000, but before the April 7, 2000 order that reflects that the original judgment had actually been vacated. It thus appears that the original judgment was never formally vacated, most likely because appellant changed his mind about desiring it to be vacated before an order to that effect could be entered. The only action taken by the court as reflected in the April 7, 2000 order was, therefore, to allow appellant to withdraw his Rule 37 petition. In short, appellant appears from the record to have obtained that which he sought: a statement of the court's agreement to vacate the judgment and the subsequent withdrawal by appellant of the Rule 37 petition so that the court would not enter an order vacating the judgment.

Motions for extension of time and appointment of counsel moot; appeal dismissed.

Thornton, J. not participating.