Frederick Marks v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 08-918
Opinion Delivered
FREDERICK MARKS
Appellant
November 20, 2008
APPELLEE’S MOTION TO DISMISS
APPEAL [CIRCUIT COURT OF
CLARK COUNTY, CR 2003-52, HON.
JOHN A. THOMAS, JUDGE]
v.
STATE OF ARKANSAS
Appellee
MOTION GRANTED; APPEAL
DISMISSED.
PER CURIAM
A judgment of conviction entered July 16, 2003, reflects that appellant Frederick Marks
entered a plea of guilty to aggravated robbery for which a sentence of 480 months’ imprisonment
was imposed. He also pleaded guilty to possession of a firearm for which imposition of an
additional 180 months’ imprisonment was suspended.
On March 26, 2008, appellant filed in the trial court a pro se petition for postconviction relief
under Arkansas Rule of Criminal Procedure 37.1. The petition was denied, and appellant lodged an
appeal here from the order. Now before us is a motion filed by the appellee State asking that the
appeal be dismissed on the ground that the Rule 37.1 petition was not timely filed.
The motion is granted. 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). It is clear from the record lodged in this appeal that appellant’s
Rule 37.1 petition was not timely filed and, as a result, he cannot prevail on appeal.
Where the defendant entered a plea of guilty, Arkansas Rule of Criminal Procedure Rule
37.2(c) requires that the petition for postconviction relief be filed within ninety days of the entry of
the judgment. In appellant’s case, the judgment was entered almost five years before the petition was
filed. 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). Appellant argued in his Rule 37.1 petition that the claims raised were sufficient, if
proven, to void the judgment, but we have previously held that even a ground sufficient to void the
judgment of conviction must be alleged in a petition that complies with the time requirements of
Rule 37. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).
Motion granted; appeal dismissed.
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