Calvin Billingsley v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 15, 2003

CALVIN BILLINGSLEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-204

PRO SE MOTION TO STAY APPEAL UNTIL RECORD COMPLETED [CIRCUIT COURT OF HOWARD COUNTY, NO. CR 2001-12, HON. CHARLES YEARGAN, JUDGE]

MOTION MOOT; APPEAL DISMISSED

On March 15, 2001, judgment was entered reflecting that Calvin Billingsley had pleaded guilty to forgery in the second degree. A jury empaneled for the purpose of sentencing recommended a sentence of 360 months' imprisonment which was imposed by the court.

Billingsley appealed the sentence, and the court of appeals affirmed. Billingsley v. State, CACR 01-1019 (Ark. App. June 2, 2002). The court of appeals issued its mandate on June 25, 2002.

On October 17, 2002, Billingsley filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, challenging the judgment. The petition was denied, and Billingsley has lodged an appeal of the order in this court.

Now before us is appellant Billingsley's motion asking that the appeal be stayed until therecord can be completed.1 We declare the motion moot and dismiss the appeal because the Rule 37.1 petition filed in the trial court was untimely, and thus appellant was procedurally barred from proceeding under the rule. 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. 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); 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).

Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate on affirmance of the judgment was issued. Appellant did not file his petition under the rule until approximately four months after the mandate of the court of appeals was issued. 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).

Motion moot; appeal dismissed.

Corbin, J., not participating.

1 Appellant erroneously asserts in the motion that the Rule 37.1 petition he filed in the trial court is not a part of the record lodged on appeal.