Nelson Garth v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 25, 2001

NELSON GARTH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-123

APPEAL FROM THE DREW COUNTY CIRCUIT COURT,

NO. CR 96-73-1, HON DON EDWARD GLOVER, JUDGE

AFFIRMED

Appellant Nelson Garth was convicted by a jury in the Drew County Circuit Court of theft of property by receiving. He was sentenced to a term of twenty years' imprisonment and fined $10,000. His conviction was affirmed by the Arkansas Court of Appeals, and the mandate issued on December 9, 1997. Appellant filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37 on February 12, 1998. The trial court initially denied Appellant's petition on the ground that it was not timely filed under Rule 37.2(c), which requires that petitions be filed within sixty days of the date the mandate is issued. Appellant subsequently filed a motion for reconsideration, alleging that the circuit clerk received his petition on February 2, 1998. The trial court granted the motion, vacated its previous order, and conducted a hearing on Appellant's Rule 37 petition. Again, the trial court denied Appellant's petition, finding that his allegations of ineffective assistance of counsel were without merit. From that order, comes the instant appeal.

On appeal, Appellant argues that the trial court erred in refusing to set aside his conviction because he was subjected to ineffective assistance of counsel, both at trial and on direct appeal. We decline to address the merits of Appellant's argument, because his petition for postconviction relief was not timely filed, as required by Rule 37.2(c).

It is well settled that the time limits imposed by Rule 37 are jurisdictional in nature; thus, the circuit court lacked jurisdiction to consider the untimely petition. See Hill v. State, 340 Ark. 248, 13 S.W.3d 142 (2000). Moreover, the trial court erred in granting Appellant's motion for reconsideration. Rule 37.2(d) provides :

The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.

In Shoemate v. State, 339 Ark. 403, 5 S.W.3d 446 (1999), this court pointed out that under this rule a trial court lacks jurisdiction to address a motion for reconsideration. The fact that Appellant alleged that his petition was actually received by the circuit clerk on February 2, 1998, and thus, was timely, did not exempt him from the rule that a trial court's decision is final when rendered.

In any event, Appellant's argument that his petition was timely is without merit.

There is nothing in the record that supports Appellants contention that the petition was timely. The record reflects that Appellant's petition was stamped filed in the Drew County Circuit Clerk's office on February 12, but the deadline for filing such a petition was February 9. In Hamel v. State, this court held that a petition for postconviction relief was untimely when it was placed in the prison's mailing system before the deadline passed, but was not stamped by the circuit clerk until after the deadline had passed. Likewise, this court has held that the date of filing a petition for postconviction relief is determinative of whether the trial court has jurisdiction to consider the merits of the petition. See Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996). Therefore, the trial court lacked jurisdiction to consider the merits of Appellant's petition for postconviction relief.

Affirmed.