Hall v. State
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ARKANSAS SUPREME COURT
No.
CR 09-421
Opinion Delivered
TOMMY HALL
Appellant
v.
STATE OF ARKANSAS
Appellee
June 4, 2009
PRO SE MOTIONS FOR SUBPOENA
OF TESTIMONY, TO ORDER MILLER
COUNTY OFFICIALS TO DELIVER
DOCUMENTS, AND FOR EXTENSION
OF TIME TO FILE APPELLANT’S
BRIEF [CIRCUIT COURT OF MILLER
COUNTY, CR 2004-164, HON. JOE E.
GRIFFIN, JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 2006, appellant Tommy Hall entered a plea of guilty to a charge of possession of a
controlled substance with intent to deliver in Miller County Circuit Court and received a sentence,
as an habitual offender, of 420 months’ imprisonment in the Arkansas Department of Correction.
The judgment so reflecting was entered on November 22, 2006. In 2008, appellant filed in the trial
court a motion to suppress in the case, raising allegations that a traffic stop was in violation of his
constitutional rights and asserting that his statements, a passenger’s statements, and any contraband
should be suppressed. The trial court entered an order that denied the motion and appellant lodged
an appeal of that order in this court. He has now filed a motion to subpoena testimony and exhibits
for his appeal, a motion requesting this court to order Miller County officials to deliver documents
so that he may file his brief, and a motion requesting an extension of time in which to file appellant’s
brief.
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. Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006)
(per curiam). Appellant clearly cannot prevail here. His motion in the trial court concerning
suppression of evidence in the case was in effect a motion to withdraw his guilty plea. This court
has held that where a sentence has been entered and placed in execution prior to the filing of a
motion to withdraw the guilty plea upon which it was based, the motion must be treated as having
been made pursuant to Arkansas Rule of Criminal Procedure 37.1. Mims v. State, 360 Ark. 96, 199
S.W.3d 681 (2004) (per curiam). As a petition under Rule 37.1, the motion was not timely filed.
Where a conviction was obtained on a plea of guilty, Arkansas Rule of Criminal Procedure
37.2(c) requires that the petition for postconviction relief must be filed within ninety days of the
entry of the judgment. In this case, where the judgment was entered more than two years prior to
the filing of the motion, the request for postconviction relief fell outside of the time limitions. 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 appellant’s request for postconviction relief was not timely filed, the trial court could
not grant relief. Appellant clearly cannot prevail on appeal and the appeal is accordingly dismissed.
The motions are moot.
Appeal dismissed; motions moot.
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