Steve Bader a/k/a Steven Scott Bader v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

May 27, 2004

STEVE BADER

aka STEVEN SCOTT BADER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-443

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF BENTON COUNTY, NO. CR 98-440-2, DAVID S. CLINGER, JUDGE]

MOTION DENIED

Per Curiam

In 1999, Steve Bader, who is also known as Steven Scott Bader, was found guilty by a jury of murder in the first degree and sentenced as a habitual offender to 480 months' imprisonment. We affirmed. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001). Our mandate was issued on April 10, 2001.

On November 26, 2001, 230 days after the mandate was issued, Bader filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 seeking to have the judgment vacated. On November 19, 2002, the trial court denied the petition on the ground that it was untimely filed pursuant to Criminal Procedure Rule 37.2(c), which provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued upon affirmance of the judgment. As the time limitations imposed in Criminal Procedure Rule 37.2(c) are jurisdictional in nature, the circuit court was without jurisdiction to grant relief on the 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).

On December 23, 2003, petitioner Bader filed a notice of appeal in which he declared that

he was filing the notice of appeal as a "State Rule 37, that I want heard in [the] Arkansas Supreme Court." In response to the notice of appeal, the circuit clerk prepared and forwarded a certified appeal record to our clerk consisting of the Rule 37.1 petition filed November 26, 2001, the order entered November 19, 2002, and the notice of appeal filed December 23, 2003.

When the record was tendered here, our clerk correctly declined to lodge it because the notice of appeal was not filed within thirty days of any judgment or order in the record as required by Rule 4 (a) of the Rules of Appellate Procedure. Now before us is petitioner's motion for rule on clerk, asking that we direct the clerk to lodge the record.

Petitioner asks that the late notice of appeal be excused because he was new to the prison unit to which he was assigned and thought that he had ninety days to file a notice. He does not explain, however, why the notice of appeal was in fact filed almost thirteen months after the order was entered. Moreover, even if petitioner had filed a timely notice of appeal from the November 19, 2002, order that denied his Rule 37.1 petition, the petition he filed in the trial court was untimely. As stated, the time limitations imposed in Criminal Procedure Rule 37.2(c) are jurisdictional in nature, and the trial court was without jurisdiction to grant relief on the untimely petition. As it is abundantly clear that petitioner could not prevail on appeal even if the tendered record were lodged here, the motion for rule on clerk is denied.

Motion denied.