Curtis O'Neal Mitchell v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

CURTIS O'NEAL MITCHELL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-619

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF POINSETT COUNTY, CR 2000-327, HON. DAVID N. LASER, JUDGE]

MOTION DENIED

Per Curiam

In 2001, Curtis O'Neal Mitchell was found guilty by a jury of aggravated robbery and sentenced to 192 months' imprisonment. The court of appeals affirmed. Mitchell v. State, CA CR 02-523 (Ark. App. April 2, 2003). The court of appeals issued its mandate on April 22, 2003.

On August 1, 2003, Mitchell filed in the trial court a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. The petition was denied on September 23, 2003, on the ground that it was untimely filed.

No appeal was taken from the order, and petitioner Mitchell now seeks leave to proceed with a belated appeal. As we find that petitioner could not be successful on appeal even if he were permitted to proceed, the motion is denied. See Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); 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).

The petition in the trial court was not timely filed; and, as a result, petitioner was procedurally barred from proceeding with a petition for postconviction relief. Criminal Procedure Rule 37.2(c) provides that all grounds for postconviction relief must be raised in a petition under the

rule filed within sixty days of the date the mandate was issued following affirmance of the judgment. The record in this matter reflects that petitioner filed his petition challenging the judgment 101 days after the mandate of the court of appeals was issued.

The time limitations imposed in our postconviction rule are jurisdictional in nature, and the circuit court may not grant relief on a untimely postconviction petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Petitioner filed an untimely petition; thus, the trial could not have granted the postconviction relief sought, and petitioner could not prevail if permitted to proceed with an appeal.

Motion denied.