Ricky L. Scott v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-350

NOT DESIGNATED FOR PUBLICATION

RICKY L. SCOTT

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 19, 2005

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF, FOR APPOINTMENT OF COUNSEL, TO SUPPLEMENT RECORD, AND FOR COPY OF RECORD [CIRCUIT COURT OF CROSS COUNTY, CR 96-61, HON. L.T. SIMES, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

PER CURIAM

In 1998, Ricky L. Scott was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999).

Scott subsequently filed a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. The petition was denied on April 20, 2001, and Scott appealed to this court. We remanded the case to the trial court in accordance with Rule 37.3 (c) so that the trial court could enter specific written findings on the allegations contained in the petition. Scott v. State, 351 Ark. 619, 96 S.W.3d 732 (2003).

The trial court held a hearing on the Rule 37.1 petition and entered a second order, denying all relief. The remand was returned to this court on April 2, 2003. We affirmed the second order in Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003). Both Scott's attorney and Scott, acting pro se, filed a petition for rehearing. Both petitions were denied by per curiam order on January 22, 2004.

The matter which is now before us pertains to a pro se motion filed by Scott in the trial court on May 8, 2003, in which he asked the trial court to modify the second order to include a ruling on issues that he contended were not addressed in the second order. The court denied the motion on December 17, 2004, and Scott brings this appeal.1 Appellant Scott has filed a series of motions in the appeal.

The appeal is dismissed because the trial court did not have jurisdiction to modify its order as requested by appellant in the May 8, 2003, motion after the remand had been returned to this court. The motions are moot.

Once jurisdiction had been returned to this court, any challenge to the second order should have been raised in this court. As a result, the trial court did not err when it declined to grant relief on the May 8, 2003, motion.

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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).

Appeal dismissed; motions moot.

Imber, J., not participating.

1 Even though the remand had been returned to this court, Scott sought a ruling on the May 8, 2003, motion by filing a petition for writ of mandamus in this court. The mandamus petition was declared moot. Scott v. Simes, CR 04-1322 (Ark. January 6, 2005) (per curiam).