Demetrius L. Woods v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

May 6, 2004

DEMETRIUS L. WOODS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-187

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2003-251, HON. JOHN LANGSTON, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

On May 28, 2003, judgment was entered reflecting that Demetrius L. Woods had been found guilty by a jury of burglary, theft of property, and possession of a controlled substance. An aggregate sentence of 252 months' imprisonment was imposed. On June 2, 2003, the judgment was amended to correct a clerical error. No appeal was taken.

On September 4, 2003, Woods filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, challenging the judgment. The petition was denied by the trial court, and Woods has lodged this appeal.

Now before us is appellant Woods's motion asking that counsel be appointed to represent him on appeal. We declare the motion moot because we must dismiss the appeal since Wood's Rule 37.1 petition was untimely filed in the trial court. Consequently, Woods is 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 where no appeal is taken from the judgment of conviction. Woods did not file his petition under the rule until ninety-nine days after the original judgment was entered and ninety-four days after the amended judgment was 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. 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; motion moot.