Eddie Levell Parker v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 17, 2002

EDDIE LEVELL PARKER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-416

APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY, NO. CR 97-9, HONORABLE SAMUEL TURNER, JR., JUDGE

AFFIRMED

Appellant was convicted of capital murder and first-degree murder and sentenced to life imprisonment without parole. This court affirmed the conviction and sentence in Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The mandate from appellant's direct appeal was issued on May 27, 1998. On July 17, 1998, appellant filed a motion for permission to file an enlarged petition pursuant to Ark. R. Crim. P. 37 and requested that the time for filing his petition be held in abeyance until the circuit court acted on the motion. It appears that the circuit court never acted on appellant's motion, and his petition was not filed until April 23, 1999, almost eleven months after the clerk issued the mandate. The circuit court denied appellant's petition, and appellant has lodged an appeal of the order in this court. We dismiss the appeal because the Rule 37 petition was untimely filed in the trial court, and thus appellant was procedurally barred from proceeding.

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 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).

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 until almost eleven months after the mandate was issued. Time limitations imposed in Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Therefore, we dismiss appellant's petition because the circuit court lacked jurisdiction to act on the petition.

Affirmed.

Imber, J., not participating.