Debra Wilburn v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-546

NOT DESIGNATED FOR PUBLICATION

DEBRA WILBURN

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered June 30, 2005

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF CRAWFORD, CR 99-199, HON. GARY R. COTTRELL, JUDGE]

MOTION DENIED

PER CURIAM

In 2000, Debra Wilburn was found guilty by a jury of solicitation to commit capital murder and sentenced to fifteen years' imprisonment. We affirmed. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001). Our mandate was issued October 16, 2001.

In 2005, Wilburn filed in the trial court a pro se motion for postconviction relief, seeking credit against her sentence for time served in custody in the county detention center after her conviction. The motion was dismissed. Wilburn did not file a timely notice of appeal from the order, and she now seeks leave to proceed with a belated appeal pursuant to Ark. R. App. P.-Crim. 2(e).

We need not consider petitioner's reasons for failing to perfect an appeal because it is clear from the record that the motion filed in the trial court was not timely filed. This court has consistently held that a postconviction matter will not be permitted to go forward where it is clear that the petitioner 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); 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).

A request for credit against a sentence for time spent in custody is a request for modification of a sentence that falls within the purview of our postconviction rule, Criminal Procedure Rule 37.1. Criminal Procedure Rule 37.2 (c) provides that all grounds for postconviction relief must be raised in a petition under the rule filed within sixty days of the date that the mandate of the appellate court affirming the judgment was issued. The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Petitioner was procedurally barred from proceeding for the modification of sentence because she did not make the request until more than three years after this court affirmed the judgment and the mandate of this court was issued.

Motion denied.