Robert Jennings v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 17, 2003

ROBERT JENNINGS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-906

APPEAL FROM THE CIRCUIT COURT OF CROSS COUNTY, NO. CR 85-1, HONORABLE L. T. SIMES II, JUDGE

AFFIRMED

In 1985, appellant was convicted of rape and sentenced to life imprisonment. We affirmed his conviction in Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986). Appellant's subsequent request to proceed under Ark. R. Crim. P. 37 was denied. See Jennings v. State, CR 85-229 (Ark. Sept. 21, 1987). On January 10, 2000, appellant filed a pro se motion to vacate the judgment and commitment order. An amended motion was filed by counsel on May 23, 2000. Appellant claimed that he was denied due process because the trial judge amended the information prior to trial; thereby violating Ark. Code Ann. § 16-85-407.1 The trial court denied relief, holding that the motion to vacate was really an untimely petition under Rule 37. On appeal, appellant argues that the trial court erred in ruling that his motion to vacate was untimely and that the court's denial of his motion was clearly erroneous because his conviction is void for want of due process. We willnot address the issue of whether appellant's conviction is void because his petition was procedurally barred. Regardless of the label appellant gives his motion, we agree with the trial court that it was a petition for postconviction relief and thus subject to the procedural rules embodied in Rule 37. See Bailey v. State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993). Because appellant was convicted in 1985, his petition is governed by Rule 37 in the form effective at his sentencing. See In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989). At the time appellant was convicted and sentenced, postconviction relief was not available to a defendant who directly appealed his conviction unless he first sought permission from this court.2 See Ark. R. Crim. P. 37.2(a) (1985). Appellant did seek permission to file a petition following affirmance on direct appeal, but permission was denied. He did not seek permission to file the petition in question in the trial court.

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, 316, 619 S.W.2d 628, 629 (1981). Appellant's first attempt at postconviction relief was denied with prejudice in 1987; therefore, the present petition was an unauthorized second petition and was procedurally barred. For these reasons, the trial's court order is affirmed.

Affirmed.

1 At the time of appellant's trial, the statute was located at Ark. Stat. Ann. § 43-1024 (Repl. 1977).

2 Arkansas Rule of Criminal Procedure 37 was revised effective January 1, 1991, to remove the requirement that a petitioner whose conviction was affirmed on appeal gain leave of this court before proceeding in the trial court under the rule. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 979 S.W.2d 458 (1990).