Terrell v. State

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Appellant Terrell Davis pleaded guilty to multiple felony offenses. Ninety-five days after the judgments were entered-of-record, Appellant filed in the trial court a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The petition was denied on the ground that it was not timely filed under the rule. Appellant appealed. Before the Supreme Court was a motion filed by Appellant related to his appeal. The Court dismissed the appeal and declared the motion moot, holding that Appellant's petition was untimely pursuant to Ark. R. Crim. P. 37.2(c), which provides that a petition under the rule must be filed within ninety days of the date the judgment was entered if the petitioner entered a plea of guilty.

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Cite as 2012 Ark. 69 SUPREME COURT OF ARKANSAS No. CR 11-1089 Opinion Delivered TERRELL M. DAVIS APPELLANT V. STATE OF ARKANSAS February 16, 2012 PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [HEMPSTEAD COUNTY CIRCUIT COURT, CR 2006-135, CR 2006-136, CR 2006-137, CR 2011-127, CR 2011-128, HON. RANDY WRIGHT, JUDGE] APPELLEE APPEAL DISMISSED; MOTION MOOT. PER CURIAM On June 27, 2011, judgments were entered reflecting that appellant Terrell M. Davis had entered pleas of guilty to multiple felony offenses in the Hempstead County Circuit Court. An aggregate term of 216 months imprisonment was imposed for the offenses. Ninety-five days after the judgments were entered-of-record, appellant filed in the trial court one pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 (2011) that encompassed all the judgments entered June 27, 2011. The petition was denied on the ground that it was not a timely petition under the rule. Appellant has lodged an appeal here from the order. Now before us is a motion filed by appellant for an extension of time to file his brief-in-chief. As it is clear from the face of the record that the Rule 37.1 petition was not timely filed, we dismiss the appeal. See Coleman v. State, 2010 Ark. 490 (per curiam). The motion for extension of time is moot. This court has consistently held that a postconviction appeal will Cite as 2012 Ark. 69 not be permitted to go forward where it is clear that the appellant could not prevail. Gardner v. State, 2010 Ark. 344 (per curiam); Harris v. State, 2010 Ark. 314 (per curiam); Crawford v. State, 2010 Ark. 313 (per curiam); Robertson v. State, 2010 Ark. 300 , ___ S.W.3d ___ (per curiam); Carter v. State, 2010 Ark. 231, ___ S.W.3d ___ (per curiam); Gray v. State, 2010 Ark. 216 (per curiam); see Tillman v. State, 2010 Ark. 103 (per curiam); Pierce v. State, 2009 Ark. 606 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); see also Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam). Arkansas Rule of Criminal Procedure 37.2(c) (2011) provides that a petition under the rule must be filed within ninety days of the date the judgment was entered if the petitioner entered a plea of guilty. Here, appellant filed the petition ninety-five days after the judgments of conviction were entered in the cases. Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, a trial court lacks jurisdiction to consider a Rule 37.1 petition. Gardner, 2010 Ark. 344; Harris, 2010 Ark. 314; Crawford, 2010 Ark. 313; Gray, 2010 Ark. 216; see Tillman, 2010 Ark. 103 (citing Lauderdale v. State, 2009 Ark. 624 (per curiam)); see also Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Appeal dismissed; motion moot.

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