Carlton King v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CARLTON KING
Appellant
v.
STATE OF ARKANSAS
Appellee
CR 08-432
Opinion Delivered
June 19, 2008
PRO SE MOTION FOR EXTENSION
OF TIME TO FILE APPELLANT’S
BRIEF [CIRCUIT COURT OF
UNION COUNTY, CR 2005-274,
HON. CAROL C. ANTHONY,
JUDGE]
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
A judgment and commitment order entered on December 4, 2006, reflects that appellant
Carlton King entered a negotiated plea of guilty or nolo contendere to delivery of a controlled
substance (cocaine) and that, as a habitual offender, he was sentenced to 720 months’ imprisonment
in the Arkansas Department of Correction. On January 15, 2008, appellant filed, under the same
criminal case number, a pro se petition challenging the constitutionality of the statute under which
he was charged with delivery of cocaine, Ark. Code Ann. § 5-64-401 (Supp. 2003). The trial court
denied and dismissed the petition, and appellant has lodged an appeal of that order in this court.1
Now before us is appellant’s pro se motion for an extension of time in which to file his brief.
Because we determine that appellant cannot prevail on this appeal, we dismiss the appeal and the
1
We note that the petition was filed listing Robin Carroll and Jamie Pratt as “respondents.” The
order appealed, however, lists the opposing party as the “State of Arkansas.”
motion is therefore moot.
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. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003)
(per curiam). Here, appellant’s petition was filed in his criminal case and must be treated as an
untimely petition for postconviction relief under Ark. R. Crim. P. 37.1.
Although appellant labeled the petition as one for declaratory judgment, he sought to attack
his judgment through the petition, and the petition must therefore be considered pursuant to Rule
37.1. State v. Wilmoth, 369 Ark. 346, 350-351, ___ S.W.3d ___, ___ (2007) (citing Bailey v. State,
312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993) (per curiam)). Where a conviction was not
appealed, Ark. R. Crim. P. 37.2(c) requires that a Rule 37.1 petition must be filed within ninety days
of the entry of the judgment. In this case, that period expired on Sunday, March 4, 2007, and any
petition for postconviction relief was required to be filed by the following Monday, March 5, 2007.
Appellant did not file his petition until more than ten months after that date.
The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and the circuit court
may not grant relief on an untimely petition. Womack v. State, 368 Ark. 341, 245 S.W.3d 154
(2006) (per curiam). Because the circuit court could not grant relief on the petition, it is clear that
appellant cannot prevail on appeal.
Appeal dismissed; motion moot.
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