Donald Cleveland Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 14, 2001

DONALD CLEVELAND JOHNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-129

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-4055, HON. DAVID BOGARD, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

On May 5, 1999, judgment was entered reflecting that Donald Cleveland Johnson had pleaded guilty to multiple felony offenses and been sentenced to a term of 120 months' imprisonment. On September 2, 1999, Johnson filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), alleging that the sentence imposed in 1999 was imposed in an illegal manner. The court denied the petition, and the record has been lodged here on appeal.

Now before us is appellant Johnson's motion for extension of time to file the appellant's brief. Because we find that the trial court did not err when it denied relief, we deny the motion and dismiss the appeal. 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 appeal is wholly without merit. 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).

Appellant was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 1995) in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 1995); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37 provides that all grounds for postconviction relief, including the assertion that a sentence is illegal or imposed in an illegal manner, must be raised in a petition under the rule filed within ninety days of entry of judgment pursuant to a plea of guilty. The appellant here did not file his petition challenging the judgment within the ninety-day period set by Rule 37. The time limitations imposed in Rule 37 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).

Motion denied and appeal dismissed.