Antonio Ayers v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

ANTONIO AYERS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-718

PRO SE MOTION TO FILE HANDWRITTEN BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 95-868, HON. JOHN LANGSTON, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1996, Antonio Ayers was found guilty of capital murder and theft of property for which an aggregate sentence of life imprisonment without parole was imposed. We affirmed. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). This court's mandate was issued on October 6, 1998. Approximately twenty-seven months later on January 3, 2001, Ayers filed in the trial court a motion asking to be provided with a transcript of his trial at public expense so that he could prepare a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The motion was denied, and Ayers has lodged an appeal of the order in this court.

Now before us is appellant Ayers's motion seeking leave to file a handwritten brief. Ayers filed the brief in typewritten form after he filed the motion; but, nevertheless, we take this opportunity to declare the motion moot and dismiss the appeal because the motion for transcript was not properly filed in the trial court and because the time for filing a Rule 37 petition in

appellant's case was long past. 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).

Once a transcript is lodged in the appellate court on direct appeal from a judgment of conviction, any motion requesting a copy of the transcript at public expense must be filed in this court, not in the trial court. See Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). Moreover, 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. The sixty-day period for appellant to proceed under Rule 37 elapsed in 1998. Therefore, appellant would not be entitled to a transcript to file an untimely Rule 37 petition even if he had filed the motion in this court. 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.