Whitney v. State (Majority, with Dissenting)
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The Supreme Court treated Petitioner’s pro se “petition for review en banc of the clerks [sic] decision” as a motion for rule on clerk and dismissed the motion.
Petitioner was convicted of eighteen counts of possession of child pornography. The court of appeals affirmed on appeal. Petitioner then filed a pro se petition under Ark. R. Crim. P. 37.1. The trial court dismissed the Rule 37.1 petition because the petition did not have the necessary affidavit under Rule 37.1(c). Petitioner filed a notice of appeal of the order, but the clerk declined to file the record because it was not timely tendered. Petitioner then filed this petition alleging that the procedural default should be excused. The Supreme Court dismissed the petition, holding that because the trial court did not have authority to consider the merits of the petition when it did or later, Petitioner could not succeed on appeal.
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