Jamie C. Emberson, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

November 11, 2004

JAMIE C. EMBERSON, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-783

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF LOGAN COUNTY, NO. CR 2001-108A, HON. PAUL DANIELSON, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 2002, Jamie C. Emberson, Jr. was found guilty by a jury of manufacturing a controlled substance and possession of drug paraphernalia. An aggregate term of 240 months' imprisonment was imposed. The court of appeals affirmed. Emberson v. State, CACR 03-96 (Ark. App. October 22, 2003). The court of appeals' mandate was issued on November 12, 2003.

On February 17, 2004, Emberson filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court in which he challenged the judgment. The petition was denied, and Emberson has lodged an appeal of the order in this court.

Now before us is appellant's motion for extension of time to file his brief. We dismiss the appeal because it is clear from the record that the trial court did not err when it denied relief. The motion for extension of time 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. 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).

Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued following affirmance of the judgment being challenged in the Rule 37.1 petition. Appellant filed his petition in the trial court ninety-seven days after the mandate in the instant case 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.