Androus Hall v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

ANDROUS HALL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-537

PRO SE MOTION FOR BELATED APPEAL OF ORDERS [CIRCUIT COURT OF PHILLIPS COUNTY, CR 96-271, HON. HARVEY L. YATES, JUDGE, AND L.T. SIMES, JUDGE]

MOTION DENIED

Per Curiam

In 1997, Androus Hall was found guilty by a jury of aggravated robbery, battery in the first degree, and rape. An aggregate sentence of 576 months' imprisonment was imposed. The court of appeals affirmed. Hall v. State, CACR 97-1344 (November 18, 1998). The court of appeals issued the mandate on December 8, 1998.

Mr. Hall subsequently filed in the trial court a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. On October 1, 2002, Judge Harvey Yates entered an order denying relief on the ground that the petition was not timely filed. On October 3, 2002, Judge L. T. Simes entered a second order pertaining to the Rule 37 petition, also finding that petitioner Hall was entitled to no relief.

No appeal was taken from either order, and petitioner Hall now seeks leave to proceed with a belated appeal of the orders. As we find that petitioner could not be successful on appealeven if he were permitted to proceed, the motion is denied. See 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); 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).

The petition in the trial court was not timely filed; and, as a result, petitioner was procedurally barred from proceeding with a petition for postconviction relief. Criminal Procedure Rule 37.2 (c) provides that all grounds for postconviction relief must be raised in a petition under the rule filed within sixty days of the date the mandate was issued following affirmance of the judgment. The record in this matter does not reflect that petitioner filed his petition challenging the judgment within this sixty-day period.

Petitioner states in his motion for belated appeal that he filed the Rule 37.1 petition on December 21, 1998, but the only petitions in the record were filed on April 7, 1999, and December 16, 1999. While the April 7, 1999, Rule 37.1 petition is labeled, "amended Rule 37 petition and supplemental pleading," there is no December 21, 1998, petition in the record. The burden is on the petitioner to produce a record supporting the claims in the motion for belated appeal. See Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000).

The time limitations imposed in our postconviction rule are jurisdictional in nature, and the circuit court may not grant relief on a untimely postconviction petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Petitioner has not demonstrated that he filed a timely petition, and thus has failed to show that he could prevail if permitted to proceed with an appeal.

Motion denied.