Opinion
CR 10-59
Opinion Delivered February 25, 2010
Pro se Motion for Belated Appeal of Order [Circuit Court of Lonoke County, CR 2002-363, Hon. Phillip Whiteaker, Judge], Motion for Belated Appeal Treated as Motion for Rule on Clerk and Denied.
Petitioner Willie Tillman, Jr., was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). This court's mandate was issued on December 6, 2005.
On February 17, 2006, seventy-three days after the mandate was issued, petitioner filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005). The petition was dismissed on July 28, 2009, on the ground that it was not timely filed.
Petitioner timely filed a notice of appeal from the order on August 13, 2009, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Arkansas Rule of Appellate Procedure — Criminal 4(b) (2009). He now seeks leave to lodge the record belatedly. As the notice of appeal was timely, we treat the motion as a motion for rule on clerk pursuant to Arkansas Supreme Court Rule 2-2(b) (2009) to perfect the appeal rather than a motion for belated appeal. Ester v. State, 2009 Ark. 442 (per curiam) (citing Mitchem v. State, 374 Ark. 157, 386 S.W.3d 679 (2008) (per curiam)); Marshall v. State, 2009 Ark. 420 (per curiam).
Petitioner tendered the record ninety-six days after the notice of appeal was filed.
We need not consider petitioner's reasons for failing to perfect the appeal because it is clear from the record that the Rule 37.1 petition was not timely filed in the trial court. This court will not permit an appeal from an order that denied a petition for postconviction relief to go forward where it is clear that the appellant could not prevail. Mitchael v. State, 2009 Ark. 516 (per curiam) (citing Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam)); 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).
Pursuant to Arkansas Criminal Procedure Rule 37.2(c) (2009), if an appeal was taken, a petition under the rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. As stated, petitioner filed the petition for Rule 37.1 relief seventy-three days after the date of the mandate in his case, making the petition untimely. Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and the circuit court was correct to dismiss the untimely petition. Lauderdale v. State, 2009 Ark. 624 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989)).
Motion treated as motion for rule on clerk and denied.