Thomas Lester Jones v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

THOMAS LESTER JONES

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-178

PRO SE MOTIONS FOR DUPLICATION OF BRIEF AT PUBLIC EXPENSE AND TO FILE BELATED BRIEF AND TO CORRECT RECORD [CIRCUIT COURT OF WHITE COUNTY, NO. CR 97-229, HON. ROBERT EDWARDS, JUDGE]

MOTIONS DENIED AND APPEAL DISMISSED

On January 7, 1997, judgment was entered reflecting that Thomas Lester Jones had entered a plea of nolo contendere to a charge of murder in the second degree. Jones was sentenced to a term of 240 months' imprisonment.

On September 25, 2000, Jones filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), contending that sentence was illegal. The court denied the petition, and the record has been lodged here on appeal.

Now before us are appellant Jones's motions to have his brief duplicated at public expense, for leave to file a belated brief, and to correct the record. Because we find that the trial court did not err when it denied relief, we deny the motions 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 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).

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 Criminal Procedure Rule 37.2 (b) has superseded Ark.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, must be raised in a petition under the rule filed within ninety days of date the judgment subsequent to a guilty plea was entered. The ninety-day limitation on filing a postconviction petition applies to pleas of nolo contendere. Seaton v. State, supra. 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).

Motions denied and appeal dismissed.