Johnny Ray Miller v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

December 2, 2004

JOHNNY RAY MILLER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-838

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 98-428, CR 98-557, CR 98-671, CR 98-701, CR 98-701, CR 98-821, CR 98-844, CR 98-847, HON. FRED DAVIS, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

In January 1999, Johnny Ray Miller pleaded guilty to eleven felony offenses for which an aggregate term of 240 months' imprisonment was imposed. In February 1999, the judgment was amended to reflect that Miller was sentenced as a habitual offender. The aggregate sentence remained 240 months' imprisonment.

Miller subsequently filed a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 claiming that the sentence imposed was illegal and asking that it be corrected. In response to the petition, on January 12, 2000, the court again entered an amended judgment deleting the habitual offender reference. Miller did not file a timely notice of appeal from the amended judgment. We denied Miller's pro se motion seeking to proceed with a belated appeal. Miller v. State, CR 00-577 (October 12, 2000) (per curiam).

In 2003, Miller filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111(a) (Supp. 2003), contending that sentence was illegal. The court denied thepetition, and the record has been lodged here on appeal.

Now before us is appellant's motion for extension of time to file his brief. Because we find that the trial court did not err when it denied relief, we dismiss the appeal. 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. 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 was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 2003) in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 2003); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37.2(b) provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within ninety days of the date that the judgment of conviction was entered. The appellant here did not file the petition challenging the judgment in a timely manner with respect to the original or an amended judgment. The time limitations imposed in Rule 37.2(b) are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111 (Supp. 2003). See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appeal dismissed; motion moot.