Henry A. Harmon v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 21, 2002

HENRY A. HARMON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-781

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 99-1301, HONORABLE DAVID B. BOGARD, JUDGE

AFFIRMED

Appellant was found guilty of theft of property and sentenced as a habitual offender to 420 months' imprisonment. He was also found guilty of misdemeanor fleeing, which sentence was merged with the felony sentence. The Arkansas Court of Appeals affirmed. Harmon v. State, CA CR 00-369 (Ark. App. Nov. 29, 2000). Appellant subsequently filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, seeking to vacate the judgment. The trial court entered an order denying appellant's petition on February 5, 2001. On March 1, 2001, appellant filed a second Rule 37 petition, which was denied by the trial court in an order entered on March 9, 2001. According to the trial court, appellant was not entitled to file a "subsequent" petition for postconviction relief unless the original petition was specifically denied without prejudice. See Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). Moreover, the trial court noted that it would have dismissed the petition, because it did not comply with Rule 37.1(e). Appellant filed a notice of appeal on March 29, 2001.

We have consistently upheld the rule that "a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition." McCuen v. State, 328 Ark. 46, 60, 941 S.W.2d 397, 404 (1997). The trial court did not specifically deny appellant's first petition without prejudice. Therefore, appellant was barred from filing a second petition. We find no error and affirm the trial court's denial of appellant's second petition.

Affirmed.