Edward Lockhart v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 1, 2004

EDWARD LOCKHART

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-75

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL, FOR EXTENSION OF TIME TO FILE BRIEF, TO AMEND BRIEF, AND FOR DISCOVERY [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2003-755, CR 2003-1330, HON. BARRY SIMS, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

Per Curiam

On April 25, 2003, two judgments were entered reflecting that Edward Lockhart had entered pleas of guilty to one count on each of driving while under the influence of an intoxicant, fifth offense, for which an sentence of 120 months' imprisonment was imposed. The sentences were ordered served consecutively for total sentence of 240 months' imprisonment.

On September 23, 2003, Lockhart filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in which he sought to have the judgments vacated or modified. The petition was denied, and Lockhart has lodged an appeal of the order in this court.

Now before us are several motions filed by appellant Lockhart. We declare the motions 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 ninety days of the date the judgment was entered on a plea of guilty. Appellant did not file his petition under the rule until 151 days after the judgments in his cases were entered. Time limitations imposed in Criminal Procedure Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition.1 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).

Appeal dismissed; motions moot.

1 The order denying relief under Rule 37.1 states that the judgments of conviction were entered following a trial to the bench, which does not comport with the notations on the judgments which reflect that pleas of guilty were entered. Even if the judgments were entered following a bench trial, however, the Rule 37.1 petition was untimely. When a judgment is entered following a bench or jury trial and there is no appeal taken from the judgment, a petition under Rule 37.1 must be filed within ninety days of the date the judgment was entered to be timely pursuant to Rule 37.2(c). There was no appeal from either judgment entered against appellant.