Apolinar Hinojosa-Guzman v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 1, 2001

APOLINAR HINOJOSA-GUZMAN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-839

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF WASHINGTON COUNTY, NO. CR 98-1761, HON. WILLIAM STOREY, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

On February 4, 1999, judgment was entered reflecting that Apolinar Hinojosa-Guzman had pleaded guilty to possession of a controlled substance with intent to deliver for which a sentence of forty-two months' imprisonment was imposed. Imposition of an additional seventy-eight months' imprisonment was suspended.

On March 15, 2000, Hinojoza-Guzen filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37 challenging the judgment. The court denied the petition, and the record on appeal from that order has been lodged here. Now before us is a motion filed by appellant Hinojoza-Guzen for an extension of time to file the appellant's brief..

The motion is denied, and the appeal is dismissed because the petition filed in the trial court was untimely. This court has consistently held that an appeal of the denial of

postconviction relief will not be permitted to go forward when it is clear that appellant could not prevail in the appeal. 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).

Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within ninety days of the date the judgment was entered following a plea of guilty. Appellant filed his Rule 37 petition more than fifteen months after the judgment was entered and was thus procedurally barred from proceeding under the rule. The time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature; as a result, a circuit court cannot grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motion denied and appeal dismissed.