Andre Hunter v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

January 22, 2004

ANDRE HUNTER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-984

PRO SE MOTION TO FILE BELATED BRIEF [CIRCUIT COURT OF ST. FRANCIS COUNTY, NO. CR 95-526, CR 92-228, HON. HARVEY YATES, JUDGE]

MOTION MOOT; APPEAL DISMISSED

Per Curiam

In 1993, Andre Hunter entered a plea of nolo contendere to theft of property and burglary. Imposition of an aggregate term of ten years' imprisonment was suspended. He was further placed on probation for two years. In 1996, Hunter entered a plea of guilty to battery in the second degree for which imposition of a five-year sentence was suspended.

In 2001, the suspended sentences were revoked, and Hunter was sentenced to a total of thirty years' imprisonment. The court of appeals affirmed. Hunter v. State, CACR 02-9 (Ark. App. October 9, 2002). The court of appeals issued its mandate on October 29, 2002.

On January 21, 2003, Hunter filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, challenging the revocation judgment. The Rule 37.1 petition was denied, and Hunter has lodged an appeal of the order in this court.

Now before us is appellant Hunter's motion asking for leave to file a belated brief. 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 eighty-four days 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.