Hans C. Hess v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

November 4, 2004

HANS C. HESS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-835

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND FOR COPY OF RECORD [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 93-2251, CR 97-1922, HON. TIMOTHY FOX, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

Per Curiam

In 1994, judgment was entered reflecting that Hans C. Hess had entered a plea of guilty to rape and been placed on probation. Probation was subsequently revoked and Hess was sentenced to 120 months' imprisonment. In 1997, Hess pleaded guilty to two additional charges of rape and was sentenced to an aggregate sentence of 336 months' imprisonment.

On March 29, 2004, Hess filed in the trial court a "Petition for Writ of Habeas Corpus ad Testificandum" and a motion pursuant to Ark. R. Civ. P. 60. Both the petition and motion were denied by the court as untimely requests for postconviction relief. Hess has lodged an appeal of the order in this court.

Now before us are two motions filed by appellant. We declare the pleadings moot and dismiss the appeal because it is clear that the trial court did not err when it determined that the petition and motion filed in the trial court were untimely pleas for postconviction relief. 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).

There is no provision in the rules of procedure for a criminal judgment to be challenged under Rule 60, which provides a means to challenge a civil judgment, decree, or order, and it is evident that the petition and motion filed in the trial court, which attacked the judgments of conviction, were an attempt to circumvent Criminal Procedure Rule 37.2(c), which provides in pertinent part that a petition to vacate a judgment of conviction must be brought under the rule within ninety days of the date the judgment was entered following a plea of guilty. Any collateral attack on the judgment of conviction entered in appellant's case could, and should, have been brought under Rule 37.1 within ninety days of the date the judgment was entered. Ark. R. Crim. P. 37.2(c).

Appeal dismissed; motions moot.