Roderic T. Randolph v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 23, 2004

RODERIC T. RANDOLPH

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-440

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF GARLAND COUNTY, NO. CR 96-141, HON. EDWARD SMITHERMAN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1997, Roderic Randolph was found guilty of attempted rape and sentenced to 240 months' imprisonment. The court of appeals affirmed. Randolph v. State, CACR 97-1500 (June 3, 1998). The mandate of the court was issued on June 23, 1998.

On March 30 , 2004, Randolph filed in the trial court a petition asking that his sentence be credited with time served in custody for a criminal conviction in Florida. The petition was denied, and an appeal from that order has been lodged here. Appellant now seeks an extension of time to file his brief.

Because we find that the trial court did not err when it denied relief, we dismiss the appeal. The motion for extension of time 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 for a modification of sentence in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) provides that all grounds for postconviction relief must be raised in a petition under the rule filed within sixty daysof the date that the mandate of the appellate court affirming the judgment was issued. The appellant here filed the petition seeking a modification of the sentence approximately six 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. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appeal dismissed; motion moot.