Frank Watts II v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-149

NOT DESIGNATED FOR PUBLICATION

FRANK WATTS II

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 26, 2005

PRO SE MOTION FOR WRIT OF SUPERSEDEAS TO STAY APPEAL [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-2871, HON. WILLARD PROCTOR, JR., JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

On January 21, 1999, judgment was entered reflecting that Frank Watts II had been found guilty by a jury of multiple felony offenses for which an aggregate term of life imprisonment was imposed. The jury also found Watts to be a habitual offender. No appeal was taken. On October 31, 2000, approximately twenty-one months after the judgment of conviction was entered, Watts filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and Watts appealed the order. We dismissed the appeal because the Rule 37 petition filed in the trial court was untimely, and Watt was therefore procedurally barred from proceeding under the rule. Watts v. State, CR 01-544 (Ark. June 21, 2001). Watts moved for reconsideration of the decision, which was denied. Watts v. State, CR 01-544 (Ark. Sept. 27, 2001). Next, Watts filed a motion to vacate conviction and sentence under Ark. R. Civ. P. 60 in the trial court, which was denied. He appealed that decision to this court and now moves for stay of the appeal. We dismiss the appeal and declare the motion to be moot.

The petition filed in the trial court was another untimely plea for postconviction relief. 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).

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). Rule 60 does not provide an alternative. 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. It is evident that the petition filed in the trial court, which attacked the judgment of conviction, was another 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 if no appeal is taken.

Appeal dismissed; motion moot.

Imber, J., not participating.