Kirk Luster v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 3, 2004

KIRK LUSTER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 96-609

PRO SE MOTION FOR RECONSIDERATION OF MOTION FOR BELATED APPEAL OF POSTCONVICTION ORDER [CIRCUIT COURT OF CLARK COUNTY, NO. CR 95-159, HON. ROBERT McCALLUM, JUDGE]

MOTION DENIED

Per Curiam

In 1996, Kirk Luster was found guilty by a jury of possession of a controlled substance with intent to deliver for which he was sentenced to twenty-five years' imprisonment. The docket number assigned to the case in the trial court was CR 95-159. Luster appealed from the judgment, and when the record on appeal was lodged with the Arkansas Court of Appeals, the trial court docket number was mistakenly indicated on the appellate docket as CR 95-115. The court of appeals affirmed the judgment. Luster v. State, CACR 96-609 (Ark. App. April 30, 1997). Both the opinion affirming the judgment and the court's mandate, which was issued on May 20, 1997, bore the incorrect lower court number.

On December 29, 2003, Luster filed a motion in the court of appeals, asking that a corrected opinion and mandate be issued reflecting the correct lower court number. He also alleged in the motion that the error in the docket number had caused the trial court to conclude erroneously that a Rule 37.1 petition he had filed in CR 95-159 was untimely and that he should be permitted to proceed now with a belated appeal of the order that denied the Rule 37.1 petition. The Rule 37.1 order was entered in 1998.

In response to the motion, the court of appeals issued a corrected opinion and mandate with the correct lower court number. The court declined, however, to consider whether petitioner was entitled to a belated appeal of the Rule 37.1 order and certified that aspect of the motion to this court to decide.1 Luster v. State, CACR 96-609 (Ark. App. January 29, 2004). The certification to this court was proper in that this court alone can grant leave to proceed with an untimely appeal of a postconviction order. Ark. R. Crim. P. 2(e).

We denied the motion for belated appeal on the ground that it was untimely filed. Luster v. State, CACR 96-609 (Ark. February 12, 2004) (per curiam). Luster now asks that we reconsider the motion.

There is no need to reiterate the basis for concluding that the motion for belated appeal, which was pursued more than five years after the Rule 37.1 order was entered, was untimely. It will suffice to say that Luster has offered nothing to show that the motion was timely filed in this court and thus that there was an error in our decision.

Motion denied.

1 For clerical reasons, the motion retained the docket number assigned to the appeal lodged in the court of appeals.