Opinion
CR 10-536
Opinion Delivered September 23, 2010
Pro Se Motion for Belated Appeal of Order [Circuit Court of Saline County, CR 2006-130, Hon. Grisham Phillips, Judge], Motion Dismissed.
In 2006, petitioner Robert L. Washington was found guilty by a jury of aggravated robbery and sentenced as a habitual offender to 720 months' imprisonment. The Arkansas Court of Appeals affirmed. Washington v. State, CACR 07-244 (Ark. App. Oct. 31, 2007) (unpublished).
The notice of appeal in petitioner's case was filed on October 9, 2006. On January 24, 2007, before the record was lodged in the court of appeals, petitioner filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). The petition was denied on January 20, 2009. Petitioner did not file a timely notice of appeal, and he now seeks leave to proceed with a belated appeal of the order pursuant to Rule 2(e) of the Rules of Appellate Procedure-Criminal (2010).
We need not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal if the motion were granted because the Rule 37.1 petition was not timely filed. Gray v. State, 2010 Ark. 216 (per curiam). An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Id., see Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins v. State, 2010 Ark. 156 (per curiam); Meraz v. State, 2010 Ark. 121 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
Arkansas Rule of Criminal Procedure 37.2(a) provides in pertinent part:
If conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. . . . If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.
Here, the judgment of conviction in petitioner's case was not obtained on a plea of guilty, and he filed a notice of appeal to begin the appellate process. Under these circumstances, he instigated the means by which he would seek review of the judgment in the court of appeals. Therefore, Rule 37.2(a), which calls for any petition under the rule to be filed within sixty days of the day that the mandate was issued by the appellate court, applied to appellant's Rule 37.1 petition. The issue is not when the trial court lost jurisdiction of the case for other purposes, but rather whether the rule contemplates allowing a petitioner to file a petition within ninety days of the judgment, challenging that judgment, while simultaneously pursuing an appeal. We conclude that it does not. The petitioner under the rule must decide whether to pursue a direct appeal of the judgment of conviction, which will require him to delay proceeding under the rule, or forego a direct appeal and proceed under the rule with a petition filed within ninety days of the date that the judgment was entered. See Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981) (holding that a Rule 37.1 proceeding cannot be held while an appeal is proceeding); see also Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).
Having pursued a direct appeal, the burden was on the petitioner to determine if the mandate had been issued before proceeding with a Rule 37.1 petition. See O'Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999) (per curiam). A petition under Rule 37.1 must be filed after the mandate is issued because, once a judgment has been appealed, the trial court does not regain jurisdiction over the case until the mandate is issued. Johnson v. State, 2010 Ark. 217 (per curiam); Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006) (per curiam); Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994) (per curiam); see Carter v. State, 2010 Ark. 231, ___ S.W.3d ___ (per curiam); see also Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993) (citing Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945)).
The court must have jurisdiction over the Rule 37.1 petition before it can consider anything other than the timeliness of the petition. Johnson, 2010 Ark. 309; Tapp v. State, 324 Ark. 176, 920 S.W.2d 482 (1996) (per curiam). Once it is determined that jurisdiction does not exist, the disposition of the Rule 37.1 petition must be made on that basis. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Because the trial court lacked jurisdiction at the time appellant filed his petition, the circuit court was limited to dismissing the petition. Accordingly, petitioner could not prevail on appeal from the Rule 37.1 order entered in his case, and there is no good cause to grant a belated appeal.
Motion dismissed.