Timothy Burchfield v. State of Arkansas

Annotate this Case
cr05-352

ARKANSAS SUPREME COURT

No. CR 05-325

NOT DESIGNATED FOR PUBLICATION

TIMOTHY BURCHFIELD

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 12, 2005

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF DREW COUNTY, CR 2001-100-1A, HON. SAMUEL B. POPE, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

PER CURIAM

Timothy Burchfield was convicted of manufacture of, and possession of, a controlled substance, methamphetamine, and possession of drug paraphernalia with intent to manufacture methamphetamine, and was sentenced to twenty-five years' imprisonment. The court of appeals affirmed the conviction. Burchfield v. State, CACR 02-1191 (Ark. App. Feb. 18, 2004). The mandate was issued March 9, 2004. Burchfield filed a pro se petition for postconviction relief under Ark. R. Crim. P. 37.1 on March 3, 2004, which was dismissed by order entered September 30, 2004. Burchfield has appealed that order. Now before us are appellant Burchfield's motions to extend the time to file a brief and for appointment of counsel. Because we find that the trial court did not err in dismissing the petition, we dismiss the appeal and the motions are therefore 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). The petition for postconviction relief under Ark. R. Crim. P. 37.1 was filed by appellant before the mandate following affirmance of the judgment was issued. As a result, the trial court did not have jurisdiction to consider the merits of the petition. A petition under Ark. R. Crim. P. 37.1 must be filed after the mandate is issued because, when a judgment is appealed, the trial court does not regain jurisdiction over the case until that event occurs. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945).

Appeal dismissed; motions moot.