Opinion
No. CR11-539
11-10-2011
MICHAEL GILLILAND APPELLANT v. STATE OF ARKANSAS APPELLEE
MOTION TO DISMISS AND
MOTION FOR EXTENSION OF
TIME TO FILE BRIEF
REMANDED; MOTION FOR
EXTENSION MOOT.
PER CURIAM
In 2010, this court affirmed appellant Michael Gilliland's convictions for rape and sexual assault. Gilliland v. State, 2010 Ark. 135, ______ S.W.3d ______. Appellant filed a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 on June 30, 2010.
In order to determine if this court has jurisdiction to consider the appeal, the first question we must address is whether the trial court had jurisdiction to consider appellant's Rule 37.1 petition. Sims v. State, 2011 Ark. 135 (per curiam) (where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction). The filing date noted on appellant's Rule 37.1 petition indicates that it was filed twenty-four days after the last date for filing under Arkansas Rule of Criminal Procedure 37.2. Because appellant appealed the judgment, the petition was due within sixty days of the date that the mandate issued. Ark. R. Crim. P. 37.2(c). This court's mandate issued on April 6, 2010, and appellant's Rule 37.1 petition was file-marked June 30, 2010.
The time limitations in Rule 37.2(c) are jurisdictional in nature, and, if those requirements are not met, a trial court lacks jurisdiction to grant postconviction relief. Gardner v. State, 2010 Ark. 344 (per curiam). Appellant asserts that his petition, which was filed on June 30, 2010, was tendered to the clerk earlier, and that the circuit clerk had returned the petition because appellant had not paid a filing fee. Appellant, through counsel, contacted the circuit court, and the circuit court advised appellant to resubmit the petition and directed the clerk to accept the petition.
While appellant's response includes a letter from the Hot Spring County Circuit Clerk verifying this statement of fact, we cannot ascertain the actual date of tender of the petition in this case. Accordingly, we remand to the trial court for factual findings concerning the date of tender. The circuit court shall return its findings of fact, along with a transcript of any hearing on the matter, within thirty days from the date of this order. Further action on the pending appeal is delayed until the findings and hearing transcript are received.
The State also filed a motion for extension of time to file its brief in conjunction with the motion to dismiss. As the pending appeal is delayed until the findings and hearing transcript are received, this motion is moot.
Remanded for findings of fact.