Napoleon Pollard v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 25, 2002

NAPOLEON POLLARD

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-56

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF POPE COUNTY, NO. CR 87-150]

MOTION MOOT; APPEAL DISMISSED

In 1987, Napoleon Pollard was found guilty by a jury of theft of property and was sentenced as a habitual offender to a term of forty years' imprisonment. We affirmed. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). Prior to July 1, 1989, a petitioner whose judgment of conviction had been affirmed on appeal was required to petition this court for relief under Criminal Procedure Rule 37 and gain leave from this court to proceed under the rule in the circuit court before filing a petition there. In 1989, Pollard filed a Rule 37 petition here.1 Petitioner demonstrated no ground sufficient to merit granting postconviction relief, and his petition was denied. Pollard v. State, CR 88-34 (Ark. March 19, 1990).

In 2001, petitioner filed a Rule 37 petition directly in the trial court without having first acquired this court's leave to do so. The petition was denied, and petitioner has lodged an appeal of the order in this court.

Now before us is appellant Pollard's motion for extension of time to file the appellant's brief. We declare the motion moot and dismiss the appeal because the circuit court did not have jurisdiction to consider the Rule 37 petition in that appellant did not have this court's leave to file it. Moreover, Rule 37.2 (c) limits the petitioner to one petition under the rule, unless the original petition was denied without prejudice to filing a second petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). When this court denied petitioner's Rule 37 petition in 1990, we did so with prejudice to filing a subsequent petition. Therefore, even if appellant had applied to this court for permission to file the Rule 37 petition in circuit court before proceeding there, he would have been entitled to no relief.

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 the 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).

Petition dismissed.

1 The rule was revised effective January 1, 1991, to allow all petitioners to file for postconviction relief directly in the trial court without having first garnered permission from this court.