James Dawson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

JAMES DAWSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-504

PRO SE MOTION TO FILE BELATED REPLY BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 96-1877, HON. MARION HUMPHREY, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1998, James Dawson was found guilty of rape and sentenced to 240 months' imprisonment. The court of appeals affirmed. Dawson v. State, CACR 99-775 (Ark. App. January 12, 2000). The court's mandate was issued on February 1, 2000. More than five months later on July 18, 2000, Dawson filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and Dawson has lodged an appeal of the order in this court.

Now before us is appellant Dawson's motion seeking leave to file a belated reply brief. We declare the motion moot and dismiss the appeal because the Rule 37 petition filed in the trial court was untimely, and thus appellant was procedurally barred from proceeding under the rule. 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).

Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued upon affirmance of the judgment. As stated, appellant did not file his petition under the rule until more than five months after the mandate was issued. 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).

Motion moot; appeal dismissed.