Rickie Earn Berna v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 3, 2004

RICKIE EARN BERNA

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-438

PRO SE MOTIONS FOR RECORD AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF CRAWFORD COUNTY, NO. CR 81-280, MIKE MEDLOCK, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

Per Curiam

In 1983, Rickie Earn Berna was found guilty by a jury of rape, aggravated robbery, and three counts of kidnapping. He was sentenced to an aggregate term of life imprisonment plus sixty years. We affirmed. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984). Berna subsequently sought postconviction relief pursuant to Criminal Procedure Rule 37.1 which was denied. Berna v. State, CR 83-153 (Ark. June 3, 1988) (per curiam).

In 2003, Berna filed in the trial court a motion to reopen the case. The motion was denied, and the record on appeal from that order has been lodged here. Appellant Berna now seeks a copy of the record lodged on appeal and appointment of counsel.

We declare the motions moot and dismiss the appeal because the motion filed in the trial court did not comport with the prevailing rules of procedure. 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).

We have said that a timely petition pursuant to Rule 37.1 is the sole means to mount a collateral attack on a judgment of conviction. Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Even though appellant did not label the motion filed in the trial court as a petition under Rule 37.1, it amounted to a collateral challenge to the judgment and thus fell within the purview of the rule. Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993).

Rule 37.1, as it applied to petitioners with judgments entered before July 1, 1989, which had been affirmed on appeal, required the petitioner to obtain leave from this court before filing a postconviction petition in the trial court.1 Appellant did not seek leave of this court before filing the postconviction pleading in circuit court.

Moreover, even if appellant had applied to this court for leave to proceed in circuit court, he would not have been entitled to relief. Rule 37.2 (c) limits the petitioner to one petition under the rule, unless the original petition was denied without prejudice to filing a second petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). When this court denied petitioner's Rule 37.1 petition in 1988, we did so with prejudice to filing a subsequent petition. Accordingly, appellant was not eligible to file a postconviction pleading in circuit court.

Appeal dismissed; motions moot.

1 Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989. In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. Appx. 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. Appx. 746, 797 S.W.2d 458 (1990). The revised rule does not require petitioners to gain leave of this court before proceeding in the trial court.