Kenneth D. Williams v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 14, 2002

KENNETH D. WILLIAMS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-71

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 98-1119-2-3, HON. FRED DAVIS, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1999, Kenneth D. Williams was found guilty by a jury of capital murder, attempted capital murder, arson, two counts of kidnapping, two counts of aggravated robbery, and two counts of theft of property. An aggregate sentence of life imprisonment without parole was imposed. We affirmed. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). This court's mandate was issued on February 22, 2001. Approximately six months later on August 16, 2001, Williams filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and Williams has lodged an appeal of the order in this court.

Now before us is appellant Williams's motion seeking an extension of time to file the appellant's brief. We declare the motion moot and dismiss the appeal because the Rule 37 petition filed in the trial court was untimely, and thus appellant was procedurally barred from

proceeding under the rule.1 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).

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. As stated, appellant did not file his petition under the rule until approximately six months after the mandate was issued. Time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motion moot; appeal dismissed.

1 Appellant has also filed a number of other motions pertaining to the appeal. Those motions are also moot.