Jerold Charton v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 14, 2002

JEROLD CHARTON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-739

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF CONWAY COUNTY, NO. CR 99-73, HON. PAUL DANIELSON, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

In 2000, Jerold Charton was found guilty by a jury of possession of marijuana with intent to deliver and possession of drug paraphernalia. He was also convicted of driving with a suspended sentence, a misdemeanor. An aggregate sentence of twenty years' imprisonment was imposed. The court of appeals affirmed. Charton v. State, CACR 00-1229 (Ark. App. May 30, 2001).

In 2002, Charton filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), contending that sentence was illegal. The court denied the petition, and the record has been lodged here on appeal.

Now before us is appellant Charton's motion for extension of time to file the appellant's brief. Because we find that the trial court did not err when it denied relief, we deny the motions and dismiss the appeal. 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).

Appellant was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 1995) in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 1995); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37 provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within sixty days of the date that the mandate of the appellate court affirming the judgment was issued. The appellant here filed a timely Rule 37 petition in the trial court, the denial of which is on appeal to this court. Charton v. State, CR 02-60. The issues later raised in the petition pursuant to Ark. Code Ann. 16-90-111 could, and should, have been raised in the Rule 37 petition. The time limitations imposed in Rule 37 are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motion denied and appeal dismissed.