Ellis Butler v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 15, 2003

ELLIS BUTLER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-487

PRO SE MOTION TO CORRECT CLERICAL ERROR IN MANDATE and MOTION TO COMPEL TRIAL COURT TO RECALL ORDER DENYING POSTCONVICTION PETITION [CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 97-356]

MOTION TO CORRECT MANDATE GRANTED; MOTION TO COMPEL TRIAL COURT TO RECALL ORDER DENIED

Ellis Butler was found guilty of three counts of rape and sentenced as a habitual offender to ninety-six years' imprisonment. We affirmed. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). This court's mandate was issued on July 2, 2002, but the date on the mandate was incorrectly given as "June 2, 2002."

Butler filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 on August 12, 2002 The petition was denied as being untimely as a result of the trial court's reliance on the incorrect date in the mandate. Butler now asks that the mandate be corrected. He further asks that this court direct the trial court to withdraw its order denying the Rule 37.1 petition.

The motion to correct the mandate is granted. Our clerk is directed to reissue themandate with the correct date.

The motion to compel the trial court to recall its order is denied. We take judicial notice that on March 19, 2003, an appeal record was tendered here pertaining to the trial court's denial of petitioner's Rule 37.1 petition on September 4, 2002. The record reflects that petitioner did not file a timely notice of appeal from that order. If there was some error in the decision issued by the trial court, it was incumbent on petitioner to perfect an appeal and present his grounds for relief in accordance with the prevailing rules of appellate procedure. Petitioner's remedy is a motion for belated appeal of the September 4, 2002, order, not a motion asking this court to compel the trial court to recall the order.

Motion to correct mandate granted; motion to compel trial court to recall order denied.

Corbin, J., not participating.