Billy Dale Green v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 06-03

NOT DESIGNATED FOR PUBLICATION

BILLY DALE GREEN

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered January 26, 2006

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF RANDOLPH COUNTY, CR 2003-133, HON. HAROLD S. ERWIN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

On April 13, 2004, Billy Dale Green entered a plea of guilty to one count of possession of methamphetamine with intent to deliver and two counts of possession of drug paraphernalia. Green subsequently filed a pro se motion to withdraw his guilty plea on May 6, 2004. At a hearing held on May 24, 2004, the trial court denied the motion to withdraw Green's guilty plea and sentenced him to an aggregate term of life imprisonment. The trial court entered judgment in the record on the same day. Green appealed to this court from the denial of the motion to withdraw the guilty plea. We affirmed. Green v. State, __ Ark. __, __ S.W.3d __ (June 2, 2005).

On October 28, 2005, Green filed in the trial court a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court denied the petition and Green lodged an appeal here from the order.

Now before us is appellant Green's pro se motion to appoint counsel on the appeal of the denial of postconviction relief. Because we find that the petition filed in the trial court was untimely, we dismiss the appeal and hold the motion moot. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward when 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).

Appellant filed the Rule 37.1 motion on October 28, 2005. Pursuant to Ark. R. Crim. P. 37.2(c), if an appellant enters a plea of guilty, a petition for Rule 37.1 relief must be filed within ninety days from the date of the entry of the judgment by the trial court. Here, the trial court entered judgment on May 24, 2004. The fact that appellant chose to file a petition to withdraw the plea pursuant to Rule 26.1 did not toll the time for filing a Rule 37.1 petition Thus, when appellant filed his motion for Rule 37.1 relief on October 28, 2005, more than ninety days had passed from the date of judgment, making appellant's motion untimely filed. Time limitations imposed in Criminal Procedure Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989) (per curiam).

Appeal dismissed; motion moot.