Lance Mitchell Owens v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 15, 2003

LANCE MITCHELL OWENS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-76 and CR 03-78

PRO SE MOTION TO CONSOLIDATE APPEALS AND FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CR 03-76--CIRCUIT COURT OF WASHINGTON COUNTY, NO. CR 2001-1050, HON. WILLIAM A. STOREY, JUDGE] and [CR 03-78--CIRCUIT COURT OF MADISON COUNTY, NO. 2001-54, HON. WILLIAM A. STOREY, JUDGE]

APPEALS DISMISSED; MOTION MOOT

The instant matter concerns two criminal convictions. On September 6, 2002, judgment was entered reflecting that Lance Mitchell Owens had entered a plea of guilty in Washington County to kidnapping and had been sentenced to 360 months' imprisonment. On September 6, 2002, judgment was also entered in Madison County reflecting that Owens had entered a plea of guilty to murder in the first degree and had been sentenced to life imprisonment.

On December 16, 2002, Owens filed the same petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 in both Washington and Madison counties. Both petitions were denied. Owens has lodged a separate appeal in this court from each order denying relief under Rule 37.1. He now asks that the appeals be consolidated and that he be granted an extension of time to file the appellant's brief.

As we find that appellant could not be successful on appeal, both appeals are dismissed. The motion to consolidate the appeal and for brief time is moot. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994).

The two petitions filed in the trial courts were untimely; thus appellant was procedurally barred from proceeding under Rule 37.1. Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within ninety days of the date the judgment was entered on a plea of guilty. Appellant did not file either petition under the rule within that time period. (The petitions were filed 101 days after the judgments were entered.) 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).

Appeals dismissed; motion moot.

Corbin, J., not participating