Stephen M. Partin v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 23, 2004

STEPHEN M. PARTIN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-175

PRO SE MOTION FOR RULING IN APPELLANT'S FAVOR [CIRCUIT COURT OF MILLER COUNTY, NO. CR 92-155-3,

HON. KIRK JOHNSON, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

Stephen M. Partin was convicted of murder in the second degree and sentenced to thirty-five years imprisonment. We affirmed. Partin v. State, 318 Ark. 312, 885 S.W.2d 300 (1994). Our mandate was issued on November 4, 1994.

On September 22, 2003, Partin filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111(a) (Supp. 2003), contending that sentence was illegal. The court denied the petition, and the record has been lodged here on appeal.

Now before us is appellant Partin's motion asking that this court rule in his favor on appeal. Because we find that the trial court did not err when it denied relief, we dismiss the appeal. The motion 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. 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).

Appellant was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 2003) in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 2003); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37.2(b) provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within sixty days of the date that the mandate of the appellate court affirming the judgment was issued. The appellant here filed the petition challenging the judgment nine years after the mandate was issued in his case. The time limitations imposed in Rule 37.2(b) are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111 (Supp. 2003). See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appeal dismissed; motion moot.