State of Arkansas v. Lenzy McCullough

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 5, 2000

STATE OF ARKANSAS

Appellant

v.

LENZY MCCULLOUGH

Appellee

CR 99-330

APPEAL FROM THE CIRCUIT COURT OF CROSS COUNTY, (NO. CR 93-170), HONORABLE L.T. SIMES, JUDGE

REVERSED AND DISMISSED

The State has brought this appeal from an order of the Cross County Circuit Court granting Lenzy McCullough's petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In the petition, McCullough alleged, among other things, that he did not receive effective assistance of counsel during the appeal process because his attorney, after filing a timely notice of appeal, did not tender the record to this court in a timely manner. The circuit court concluded that notification issued by the Office of the Clerk of the Supreme Court about the late tender of the record amounted to a dismissal of the appeal that reinvested the circuit court with jurisdiction to hear McCullough's Rule 37 petition. The circuit court then concluded that McCullough's attorney was ineffective for failing to perfect the direct appeal of the judgment. In this appeal from that order, the State contends that under the prevailing rules of procedure, the circuit court did not have jurisdiction to consider McCullough's Rule 37 petition. We agree and reverse.

McCullough was convicted of aggravated robbery and of being a felon in possession of afirearm. He was sentenced to consecutive terms of forty and six years, respectively. The judgment of conviction was entered on February 8, 1994. The notice of appeal was filed on February 28, 1994. On May 23, 1994, McCullough filed in the circuit court a pro se petition for postconviction relief pursuant to Rule 37. No action was taken on the petition. On September 26, 1994, the Office of the Clerk notified McCullough that the record in his appeal was tendered beyond the seven month time limit, and in the same notification, advised him that the error could only be corrected through a Motion for Rule on the Clerk.

No Motion for Rule on the Clerk was filed, but McCullough resumed his efforts to obtain Rule 37 relief from the circuit court. On October 8, 1997, he filed another Rule 37 petition, and the circuit court granted an evidentiary hearing on the claims raised in both the petition that was filed in May of 1994 and McCullough's most recent petition. After the hearing, the State filed a brief in which it argued that the circuit court did not have jurisdiction to grant relief under Rule 37. Specifically, the State contended that the proper remedy for counsel's failure to perfect the direct appeal of the judgment was a Rule on the Clerk in the Supreme Court.

The circuit court concluded that although no mandate had ever been issued by this court after the tendered record was rejected, the Clerk's notification of the untimely tender amounted to a dismissal that reinvested jurisdiction of McCullough's case in the circuit court. The court further concluded that in both the manner in which the trial was prepared and the appeal was abandoned, McCullough's case was an example of egregious ineffective assistance of counsel. Consequently, the court granted McCullough's petition and ordered that he receive a new trial.

In its argument on appeal, the State contends that the circuit court lacked jurisdiction to grant McCullough's petition for Rule 37 relief. The State argues that a direct appeal of the judgment was commenced when the notice of appeal was filed in a timely manner, and that the circuit court couldnot regain jurisdiction over McCullough's case until the Office of the Clerk issued the appellate mandate. The State contends the circuit court did not have jurisdiction to take action on McCullough's petition because a mandate was never issued. We agree.

Arkansas Criminal Procedure Rule 37.2(a) provides that "if the conviction in the original case was appealed to the Supreme Court or the Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending." See also Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993). After a notice of appeal is filed, a circuit court does not reacquire jurisdiction over a criminal case until Office of the Clerk issues the mandate. No mandate was issued in this case, and there is nothing in the Clerk's notice about the late tender of the record that could be construed as a dismissal of the appeal.

While it is true that the failure to perfect an appeal can constitute ineffective assistance of counsel, the proper remedy would be a Motion for Rule of the Clerk, and not a petition for postconviction relief pursuant to Rule 37. Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987).

Reversed and dismissed.