State of Arkansas v. Billy Richard Marts II

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 2, 2000

STATE OF ARKANSAS

APPELLANT

v.

BILLY RICHARD MARTS II

APPELLEE

CR 99-133

AN APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY, NO. CR-96-1073

HONORABLE DON LANGSTON,

CIRCUIT JUDGE

REVERSED AND DISMISSED

The State has appealed from an order granting appellant's Rule 37 petition. The State argues that the trial court lacked jurisdiction to rule on appellant's petition because it was untimely. We agree and reverse and dismiss.

Appellant, Billy Richard Marts II, appealed the judgment of the Sebastian County Circuit Court convicting him of possession of a controlled substance (methamphetamine) with intent to deliver and possession of drug paraphernalia and sentencing him to concurrent terms of life and three years' imprisonment, respectively. We affirmed appellant's conviction and sentence in Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). The mandate issued May 28, 1998. Appellant attempted to fax his Rule 37 petition to the Sebastian County Circuit Clerk on July 27, 1998, at 9:17 p.m. Apparently, the fax number appellant used was not the correct number for the clerk's office. The following morning the petition was filed at the clerk's office.

The State contends that appellant's petition was not timely filed because it was a day late under Ark. Crim. R. Proc. 37.2. Specifically, the State argues that faxing a pleading on the last day to the wrong facsimile number fails to constitute a timely filing and fails to meet the mandates of Ark. Code Ann. § 16-20-109(c) (Supp. 1997). Appellant counters the State's position by arguing that he faxed the petition to the only fax number he had for the Sebastian County Circuit Clerk's Office. He maintains that the doctrines of "excusable neglect" or "good cause" should apply in this case because the fax number he used was the number published in the Arkansas Legal Directory.

Our procedural rule Ark .R .Crim. P. 37.2(c) requires, in language that is clear and unambiguous, that the petition must be filed in the appropriate circuit court within sixty days of judgment. Arkansas Code Annotated § 16-20-109(c) provides:

(c)(1) A facsimile copy of a court pleading shall be deemed received and filed by the court clerk when it is transmitted to the proper office and received on the court clerk's facsimile machine without regard to the hours of operation of the clerk's office.

The record reflects that appellant faxed his petition at approximately 9:17 p.m. on July 27 to 784-1550. As indicated from the record, the correct facsimile number for the Sebastian County Circuit Clerk on that date was 784-1580. Cindy Gilmer, the person responsible for criminal filings at the Sebastian County Circuit Clerk's Office, testified that she never received a fax copy of appellant's petition. She said that someone brought the petition in on the morning of July 28 and that it was filed at that time.

Neither of appellant's reasons for faxing his petition to the wrong location excuses hisfailure to file the petition within the sixty-day period provided in Ark. Crim. R. Proc. 37.2. In Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996), the Rule 37 petition was delivered to the circuit judge who ruled on it, but it was never filed with the circuit clerk. We held that filing the petition with the circuit clerk was critical for purposes of establishing jurisdiction. We have also found that incarceration, in itself, did not constitute good cause for a petitioner to fail to file a timely petition. See Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990). Consequently, in this case, we do not find appellant's reasons persuasive. Although appellant claims that the fax number from the directory was the only one available to him, he could have simply called the appropriate clerk's office during the sixty-day time period and obtained the correct number to ensure proper filing.

The time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an 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). Because appellant failed to timely file his Rule 37 petition, we reverse the trial court's order and dismiss.

Appellant also argues that the State procedurally defaulted or waived any argument challenging the timeliness of appellant's petition. Despite appellant's contention, the timely filing of a Rule 37 petition is jurisdictional, and thus, an issue we can raise on our own. Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989).

Reversed and dismissed.