Marcus D. Young v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 07-628
Opinion Delivered
April 17, 2008
APPELLEE’S MOTION TO DISMISS
APPEAL [CIRCUIT COURT OF
DREW COUNTY, CR 2003-184,
HON. ROBERT B. GIBSON, JR.,
JUDGE]
MARCUS D. YOUNG
Appellant
v.
STATE OF ARKANSAS
Appellee
MOTION GRANTED; APPEAL
DISMISSED.
PER CURIAM
In 2004, appellant Marcus D. Young entered a guilty plea to a charge of committing a
terroristic act. A jury sentenced him to 240 months’ imprisonment in the Arkansas Department of
Correction. Appellant appealed as to evidence presented to the jury, and the Arkansas Court of
Appeals affirmed. Young v. State, CACR 04-925 (Ark. App. Apr. 13, 2005).
Appellant, through counsel, filed a petition for relief under Ark. R. Crim. P. 37.1 and two
amended petitions, which were denied by the trial court for lack of verification. This court reversed
and remanded for the trial court to consider the original petition because it was properly verified.
Young v. State, CR 06-587 (Ark. Feb. 15, 2007) (per curiam). On April 3, 2007, the trial court
entered an order that again denied appellant relief under Rule 37.1. On May 1, 2007, appellant filed
a motion for reconsideration in the trial court, and, on June 6, 2007, he filed a notice of appeal as
to the denial of the motion for reconsideration. Appellant has lodged an appeal in this court, and the
State now brings this motion to dismiss the appeal.
The State alleges in its motion that the notice of appeal was not timely. First, the State
alleges that the motion to reconsider was a motion for rehearing prohibited under Ark. R. Crim. P.
37.2(d) and asserts that the notice of appeal was not timely as to the order denying postconviction
relief. Under Ark. R. App. P.–Crim. 2(a)(4), a notice of appeal as to an order that was entered
denying postconviction relief must be filed within thirty days of the date of the order. Next, the
State contends that the notice of appeal was also not effective as to a denial of the motion to
reconsider because the deemed denied provisions of our rules of procedure do not apply to
proceedings on a Rule 37.1 petition.
We need not consider whether the notice of appeal was effective as to the order denying the
Rule 37.1 petition because the notice of appeal only referenced the denial of the motion for
reconsideration. The record does not contain any other notice of appeal.
Nor does the record contain an order that denies the motion to reconsider. Whether the
motion was permissible or not, the deemed denied appellate rule does not apply to appeals in
proceedings on a Rule 37.1 petition. Morgan v. State, 360 Ark. 264, 200 S.W.3d 890 (2005) (per
curiam). Our clerk accepted the record in error because there was no denial of the motion for
reconsideration. Accordingly, we grant the motion to dismiss.
Motion granted; appeal dismissed.
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