Alvin Rector v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 3, 2004

ALVIN RECTOR

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-159

PRO SE MOTION TO REINSTATE APPEAL [CIRCUIT COURT OF WASHINGTON COUNTY, NO. CR 99-1642, HON. WILLIAM STOREY, JUDGE]

MOTION DISMISSED

Per Curiam

On January 27, 2000, judgment was entered reflecting that Alvin Rector had entered pleas of guilty to rape and sexual abuse in the first degree. An aggregate sentence of 180 months' imprisonment was imposed.

More than three years later on September 23, 2003, Rector filed in the trial court a motion labeled "Motion Pursuant to the Provisions of Arkansas Rules of Civil Procedure (2003) Rule 60 to Vacate or Modify the Judgment after Ninety Day Time Limit as also Made Applicable to Criminal Judgments." The motion was denied, and Rector lodged an appeal of the order in this court.

We dismissed the appeal because the motion filed in the trial court was clearly without merit. Rector v. State, CR 04-159 (April 22, 2004) (per curiam). 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 now asks that the appeal be reinstated. He argues that this court erred in holding that his motion filed in the trial court was an attempt to circumvent Criminal Procedure Rule 37.2(c), which provides in pertinent part that a petition to vacate a judgment of conviction must be brought under the rule within ninety days of the date the judgment was entered following a plea of guilty. He asserts that once the time limits to proceed under our postconviction rule have elapsed, Rule 60 provides a means to challenge a criminal judgment.

Any collateral attack on the judgment of conviction entered in appellant's case could, and should, have been brought under Rule 37.1 within ninety days of the date the judgment was entered. Ark. R. Crim. P. 37.2(c). There is no provision in the rules of procedure for a criminal judgment to be challenged under Rule 60, which provides a means to challenge a civil judgment, decree, or order. We have said that a timely petition pursuant to Rule 37.1 is the sole means to mount a collateral attack on a judgment of conviction. Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Appellant's attempt to carve out a remedy from the provisions of Rule 60 is not well founded.

Motion dismissed.