William R. Lehman v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-538

NOT DESIGNATED FOR PUBLICATION

WILLIAM R. LEHMAN

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 30, 2005

PRO SE MOTION FOR PERMISSION TO PROCEED WITH PETITION FOR WRIT OF ERROR CORAM NOBIS AND STAY APPEAL [CIRCUIT COURT OF MARION COUNTY, CR 2002-5, HON. JOHNNY RAY PUTMAN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

A judgment and commitment order entered April 30, 2003, in Marion County Circuit Court reflects that William R. Lehman entered a negotiated plea of guilty to incest and sexual assault in the second degree. He was sentenced to a term of sixty months' imprisonment for incest. Imposition of a sentence of 120 month's imprisonment for sexual assault in the second degree was suspended. On October 5, 2004, Lehman filed in this court a pro se motion for belated appeal of the judgment, which was denied in an unpublished opinion. Lehman v. State, CR 04-1046 (Ark. Dec. 9, 2004). Lehman filed a petition for postconviction relief under Ark. R. Crim. P. 37.1 in the trial court on February 4, 2005. The petition was dismissed by order entered March 14, 2005. Lehman has lodged an appeal of that order in this court, and his motion for permission to proceed with a petition for a writ of error coram nobis and stay the appeal is now before us.

It is unclear whether appellant Lehman is requesting this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. We note that, while permission to proceed is necessary before the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal, the trial court retains jurisdiction where the defendant pleaded guilty and we have not accepted an appeal, as here. See, Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam); McDonald v. State, 285 Ark. 482, 688 S.W.2d 302 (1985). As to appellant's request to stay the appeal, we find it is moot because we must dismiss the appeal.

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) (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); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991) (per curiam); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990) (per curiam); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) (per curiam).

Where, as here, a conviction was obtained on a plea of guilty, a petition must be filed within ninety days of the date of entry of the judgment in order to comply with Ark. R. Crim. P. 37.2(c). The time limitations imposed in Ark. R. Crim. P. 37.2(c) are jurisdictional in nature, and the circuit court may not grant relief on a petition for postconviction relief which is not properly filed. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). Appellant's petition for postconviction relief under Ark. R. Crim. P. 37.1 was filed by appellant more than a year after the judgment was entered. His petition was not timely, and the trial court could not grant the relief requested. The petition was properly dismissed, and we must dismiss the appeal.

Appeal dismissed; motion moot.