Jesse Robert Furr, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

DECEMBER 11, 2003

JESSE ROBERT FURR, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-958

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF MADISON COUNTY, NO. CR 90-54, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1991, Jesse Robert Furr, Jr., was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. Furr v. State, 308 Ark. 41, 822 S.W.2d 380 (1992). Furr subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court. The petition was denied, and we affirmed the order. Furr v. State, CR 92-1200 (Ark. March 8, 1993).

On June 16, 2003, Furr filed in the trial court a petition for scientific testing, invoking Ark. Code Ann. §16-112-125. There is no such provision in the Arkansas Code. The court denied the petition on the ground that it was without jurisdiction to consider the petition.1 Appellant Furr now seeks by pro se motion an extension of time to file the appellant's brief.

As we find that appellant could not be successful on appeal, the appeal is dismissed. The motion is moot. 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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); 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).

As stated, the statute invoked by appellant as the basis of the petition does not appear in the Arkansas Code. The petition was therefore properly considered by the trial court as a petition for postconviction relief. As such, the petition was subject to the time constraints imposed by our postconviction rule, Criminal Procedure Rule 37. 2 Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). Rule 37.2(b) provides that all grounds for postconviction relief 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 petition here was filed more than ten years after the mandate affirming the judgment 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).

Appeal dismissed; motion moot.

1 In a letter to appellant informing him that his petition had been denied, the court noted that even if appellant had intended the petition to be a petition pursuant to Ark. Code Ann. 16-112-201 et seq which allows a petition for scientific testing to be filed in the trial court by a petitioner claiming to be actually innocent of the offense of which he was convicted, the petition would be without merit. The court, however, did not specifically deny relief in the order under Ark. Code Ann. 16-112-201 et seq, and appellant is not precluded from invoking that statutory provision in a subsequent petition filed in the trial court.

2 This is to be distinguished from petitions for writs of habeas corpus which are filed not in the sentencing court but in the court in the jurisdiction in which the petitioner is in custody. Taylor v. State, 354 Ark. ____, ____S.W.3d ____(October 16, 2003).