Basilio Reyes v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 7, 2000

BASILIO REYES

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-972

PRO SE MOTION TO EXPEDITE CONSIDERATION OF MOTION FOR RULE ON CLERK [CIRCUIT COURT OF SEBASTIAN COUNTY, FORT SMITH DISTRICT, NO. CR 95-342 A, HON. JOE MICHAEL FITZHUGH]

MOTION TO EXPEDITE MOOT; MOTION FOR RULE ON CLERK DENIED

Basilio Reyes were found guilty of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and possession of marijuana. He was sentenced to an aggregate term of forty years' imprisonment and fines totaling $11,000. We affirmed. Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997).

Reyes subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court which was denied. Reyes filed a timely notice of appeal but did not tender the record to this court in a timely manner. He then filed a motion for rule on clerk seeking to lodge the record and a motion asking that consideration of the motion be expedited.

The motion to expedite is declared moot and the motion for rule on clerk is denied because the Rule 37 petition filed by Basilio Reyes in the trial court was untimely. Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if notfiled within sixty days of the date the mandate was issued upon affirmance of the judgment. The mandate in appellant's case was issued on October 7, 1997, but Reyes did not file his petition under the rule until March 7, 2000, which was twenty-nine months after the mandate was issued. The time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). This court has consistently held that an appeal of the denial of postconviction relief will be not be permitted to go forward where it is clear that the Rule 37 petition was not timely filed. . Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, supra; Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Motion to expedite moot; motion for rule on clerk denied.