Friar v. State (Majority)

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The Supreme Court affirmed the trial court’s dismissal of Appellant’s petition for postconviction relief under Ark. R. Crim. P. 37.1, holding that Appellant failed to challenge the basis for the circuit court’s dismissal of his petition on appeal.

The trial court dismissed Appellant’s postconviction petition without addressing the merits, finding that Appellant had failed to file it within the time allotted under Rule 37. On appeal, Appellant did not argue that the trial court erred in ruling that his petition was untimely filed. The Supreme Court affirmed because Appellant failed to challenge the trial court’s finding that his petition was not timely.

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Cite as 2018 Ark. 276 SUPREME COURT OF ARKANSAS No. CR-17-535 Opinion Delivered: ROBERT FRIAR APPELLANT V. STATE OF ARKANSAS October 4, 2018 PRO SE APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT [NO. 34CR-13-75] APPELLEE HONORABLE HAROLD S. ERWIN, JUDGE AFFIRMED. ROBIN F. WYNNE, Associate Justice Robert Friar appeals from the dismissal of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2017). The trial court dismissed the petition on the basis that it was not timely filed and did not address the merits. Because Friar has failed to challenge the trial court’s finding that his petition was not timely in his appeal, we affirm. Friar was convicted of capital murder, attempted capital murder, and committing a terroristic act. This court affirmed those convictions on direct appeal. Friar v. State, 2016 Ark. 245. Following the issuance of the mandate on direct appeal, Friar filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. The trial court denied the petition, finding that Friar had failed to file it within the time allotted under Rule 37. Friar then filed the instant appeal. In his brief, Friar does not argue that the trial court erred in ruling that his petition was untimely filed. Indeed, the argument section of his brief is composed mainly of a photocopy of his Rule 37 petition. This court will not make an appellant’s argument for him, nor raise an issue sua sponte unless it involves the jurisdiction of this court to hear the case. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We may also review a void or illegal judgment sua sponte. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003). Actions taken by a court without jurisdiction are null and void. State v. J.B., 309 Ark. 70, 827 S.W.2d 144 (1992). Thus, we may raise the issue of whether the trial court lacked jurisdiction to enter the order on appeal sua sponte. The timeliness of a postconviction petition is jurisdictional. See Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). Here, the trial court dismissed the petition as untimely, which would deprive it of jurisdiction to consider the petition. Under these circumstances, the circuit court clearly had jurisdiction to enter the order dismissing the petition; therefore, the question is not whether the trial court’s action is void, but whether it is correct. As this case does not present a potential improper exercise of jurisdiction by the trial court, we are not obliged to raise the issue of the trial court’s jurisdiction on our own. Because Friar has failed to challenge the basis for the circuit court’s dismissal of his petition on appeal, the order dismissing the petition is affirmed. Affirmed. Robert R. Friar, pro se appellant. Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee. 2 3

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