Vera Arnold v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 11, 2002

VERA A. ARNOLD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 01-277

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR 97-692

HONORABLE JOHN PLEGGE,

CIRCUIT JUDGE

REVERSED AND REMANDED

Vera Ann Arnold was found guilty of attempted capital murder and theft by receiving and sentenced to an aggregate term of forty years' imprisonment. The court of appeals affirmed. Arnold v. State, CACR 99-35 (Ark. App. November 3, 1999). We denied Arnold's petition for review on January 13, 2000, and the mandate was issued that day. Arnold v. State, CR 99-1370 (Ark. January 13, 2000). Arnold subsequently filed in the trial court on January 21, 2000, a timely petition pursuant to Criminal Procedure Rule 37 challenging the judgment. On August 2, 2000, the circuit court entered an order denying the petition without a hearing. This appeal followed. Because the record does not conclusively show that appellant is not entitled to relief, an evidentiary hearing is warranted. Thus, we reverse and remand this case for an evidentiary hearing on the issues presented in appellant's original Rule 37 petition.

Where a petition for Rule 37 relief is filed, the trial court must either grant a hearing on the petition or make a determination from the files and records if they conclusively show that thepetitioner is entitled to no relief. Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (citing Ark. R. Crim. P. 37.3(a)). If the petition is summarily denied without an evidentiary hearing, the court must make written findings specifying the parts of the files and records relied upon in denying the petition. Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987). A trial court may conclude from the record that postconviction relief sought pursuant to Rule 37 should be denied and that no hearing is necessary. Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989).

Here, the circuit court considered appellant's petition, the State's response, the trial transcript, and appellant's case file in denying appellant's petition without a hearing. From a review of the record, it appears that the State's response was untimely filed and not served on appellant in violation of Ark. R. Crim. P. 37.2. Because there appear to be issues of fact involving three affidavits that need to be addressed by the circuit court, we must reverse and remand for an evidentiary hearing.

Reversed and remanded.