Elvin Gamble, Jr. v. State of Arkansas

Annotate this Case
cr05-933

ARKANSAS SUPREME COURT

No. CR 05-933

NOT DESIGNATED FOR PUBLICATION

ELVIN GAMBLE, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 10, 2005

PRO SE MOTION TO FILE BELATED BRIEF [CIRCUIT COURT OF PULASKI COUNTY, CR 97-4071, CR 97-2526, HON. TIMOTHY FOX, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

In 1998, judgment was entered reflecting that Elvin Gamble had entered a plea of guilty to one count of aggravated assault and one count of fleeing. He was sentenced as a habitual offender to 96 months' imprisonment on each count to be served concurrently.

Also in 1998, judgment was entered reflecting that Gamble had entered a plea of guilty to one count of domestic battering in the third degree and three counts of terroristic threatening in the first degree. He was sentenced as a habitual offender to 96 months' imprisonment on each of the four counts.

In 2005, Gamble filed in the trial court a motion to correct a clerical mistake in both judgments entered in 1998. The error alleged was that the sentences imposed as reflected in the judgments were outside the statutory range for the offenses. The trial court denied the motion, and Gamble has lodged an appeal here.

Now before us is appellant Gamble's motion to file a belated 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).

While a court may correct a mere clerical error in a judgment at any time, a motion to correct a judgment which is based on a substantive claim that a sentence is excessive falls within the purview of Criminal Procedure Rule 37.1(c). Accordingly, the motion filed by appellant was subject to the limitations in the rule on the timely filing of a petition. Rule 37.2(b) provides that all grounds for postconviction relief must be raised in a petition under the rule within ninety days of the date that the judgment was entered following a plea of guilty.

The appellant here filed the motion challenging the judgment seven years after the judgments were entered in his cases. The time limitations imposed in Rule 37.3(b) are jurisdictional in nature, and a circuit court may not grant relief on an untimely postconviction petition. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appeal dismissed; motion moot.

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