Terrence Washington a/k/a Terrance Washington v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 16, 2002

TERRENCE WASHINGTON

a/k/a Terrance Washington

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 98-728

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A BELATED PETITION FOR POSTCONVICTION RELIEF PURSUANT TO CRIMINAL PROCEDURE RULE 37 [CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CR 97-81, CR 97-817]

PETITION DISMISSED

In 1997, Terrence Washington was found guilty of delivery of a controlled substance, second-degree assault, and misdemeanor fleeing. The court of appeals affirmed. Washington v. State, CACR 98-728 (Ark. App. May 5, 1999). The mandate was issued on June 24, 1999.

Petitioner Washington now asks this court to reinvest jurisdiction in the trial court so that he may file a belated petition pursuant to Criminal Procedure Rule 37.1 As grounds for the request, petitioner states that he was free on appeal bond when his case was decided and counsel failed to advise him that the judgment had been affirmed. As a direct result of counsel's dereliction of duty, he was unable to file a timely Rule 37 petition because he was not arrested

and returned from Texas where he was apparently located until after the time to file a timely Rule 37 petition had elapsed. He urges this court to hold that it would constitute a denial of due process of law if his attorney's failure to keep him abreast of the appeal were allowed to prevent him from proceeding under the rule.

The petition to reinvest jurisdiction in the trial court is denied. There is no provision in our postconviction rule for a belated petition. 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. There is no right to counsel in a postconviction proceeding, and thus counsel had no duty to inform petitioner of his right to proceed with a petition for postconviction relief and the time constraints on filing such a petition. See Pennsylvania v. Finley, 482 U.S. 551 (1987); see also Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975). A would-be petitioner must be held responsible for failing to keep apprized of the status of the appeal. O'Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999). It is incumbent on the petitioner to determine when the mandate was issued if he desires to proceed with a timely petition under the rule. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994).

Petition dismissed.

1 For clerical purposes, the petition has been filed under the docket number assigned to the direct appeal of the judgment which was lodged in the court of appeals. This court decides all matters considered to be requests for postconviction relief. See Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981).