Johnson v. State
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ARKANSAS SUPREME COURT
No.
CR 09-89
Opinion Delivered
April 16, 2009
PRO SE MOTION FOR RULE ON
CLERK [CIRCUIT COURT OF
PULASKI COUNTY, CR 2005-4243, CR
2005-4556, HON. CHRIS PIAZZA,
JUDGE]
CARROLL G. JOHNSON
Petitioner
v.
STATE OF ARKANSAS
Respondent
MOTION DENIED.
PER CURIAM
In 2008, petitioner Carroll G. Johnson, in a trial to the bench, was convicted of sexual
indecency with a child, indecent exposure, and carrying a weapon. In separate judgments, petitioner
received a sentence of seventy-two months’ imprisonment on the indecency charge and an aggregate
sentence of twelve months’ imprisonment on the remaining two charges. The Arkansas Court of
Appeals affirmed the judgments. Johnson v. State, CACR 07-659 (Ark. App. Feb. 27, 2008). The
mandate issued on March 18, 2008, and on June 12, 2008, petitioner filed a petition for
postconviction relief under Arkansas Rule of Criminal Procedure 37.1. On July 8, 2008, the trial
court denied the petition as untimely filed.
On July 23, 2008, petitioner filed in the trial court a notice of appeal that was timely, but
petitioner did not tender the record to this court until November 13, 2008. Our clerk correctly
declined to lodge the record because it was tendered outside of the ninety-day limit set in Arkansas
Rule of Appellate Procedure--Civil 5(a), as applied through Arkansas Rule of Appellate Procedure-Criminal 4(a). Petitioner brings this motion for rule on clerk, seeking to proceed with the appeal.
We need not consider petitioner’s motion or stated cause for the delay in lodging the record,
however, because it is clear from the partial record before us that petitioner could not prevail on
appeal, were we to permit the appeal to proceed. 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, it is clear that petitioner’s Rule 37.1
petition was, as the trial court found, not timely filed and the trial court could not address the merits
of the petition.
Where the judgment was appealed, Arkansas Rule of Criminal Procedure 37.2(c) requires
that the petition for postconviction relief must be filed within sixty days of the date the mandate
issued. Here, petitioner filed his petition in the trial court eighty-six days after the mandate issued.
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). The trial court could not consider an untimely petition, and petitioner could not prevail
were we to grant permission for an appeal to go forward. We therefore deny the motion for rule on
clerk.
Motion denied.
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