Cephas B. Brewer v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 7, 2002

CEPHAS B. BREWER

Appellant

v.

LARRY NORRIS, Director

Arkansas Department of Correction

Appellee

01-271

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 2000-684-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

Appellant was convicted of the rapes of his two granddaughters and sentenced to two concurrent sentences of twenty years' imprisonment. The Arkansas Court of Appeals affirmed appellant's convictions. Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999). Appellant filed a petition for a writ of habeas corpus to obtain a new trial or to have his conviction dismissed and his release ordered by the court. Appellant asserted five separate claims for habeas relief: (1) the trial court was without subject matter jurisdiction to try appellant for the rape of his granddaughter, V. R., because the statute of limitations had expired prior to his prosecution; (2) the decision to prosecute appellant for the rape in spite of the purported expiration of the statute of limitations constituted malicious prosecution; (3) the trial court committed error when it did not sua sponte dismiss the charge of rape in light of the purported expiration of the statute of limitations; (4) the evidence was insufficient to warrant his convictions; and (5) counsel was ineffective for failing to present the statute of limitations argument and for failing to challenge the discrepancies in the victim's testimony. The circuit court denied the petition and from that order comes this appeal.

In his petition, appellant argued that the state had violated the limitations period set forth in Ark. Code Ann. § 5-1-109, rendering his conviction "null and void." Appellant claimed that the statute of limitations had run before the minor-victim provision in subsection (h); therefore, the trial court did not have jurisdiction. However, appellant abandoned that claim on appeal and now argues that double jeopardy precludes the re-filing of the rape charge involving V. R., because the initial rape charge was dismissed.1 In addition, appellant argues for the first time on appeal that section 5-1-109 is vague and overbroad. It is well settled that we will not address arguments raised for the first time on appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283 (2000). Because appellant's claims were not raised below and preserved for appellate review, they are procedurally barred. The remainder of the claims asserted in appellant's petition appear to have been abandoned on appeal.

Affirmed.

1 Appellant did mention his double jeopardy claim in his reply to appellee's responsive pleading. However, he did not amend his petition to include this claim, and appellee was not given an opportunity to respond.