Croft v. State, 2010 Ark. 83 (Ark. 2/18/2010)
| Decision Date | 18 February 2010 |
| Docket Number | CR 09-1346. |
| Citation | 2010 Ark. 83 |
| Parties | John Steven CROFT, Petitioner, v. STATE of Arkansas, Respondent. |
| Court | Arkansas Supreme Court |
Motion Treated as Motion for Belated Appeal and Denied.
In 2007, petitioner John Steven Croft was found guilty by a jury of two counts of sexual assault in the second degree. An aggregate sentence of 360 months' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Croft v. State, CA CR 07-1135 (Ark. App. May 21, 2008) (unpublished). The mandate was issued on June 10, 2008.
On July 22, 2008, petitioner timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008) that did not comply with Rule 37.1(c) in that it was not verified. It was also longer than the ten pages allowed for such petitions under Rule 37.1(b). On October 13, 2008, the court denied the petition on the ground that it was not timely filed based on the court's statement that the petition was filed September 22, 2008, and thus was not filed within sixty days of the date that the appellate court mandate was issued. Rule 37.2 (c) requires that petitions be filed within that sixty-day period. Petitioner filed a motion for reconsideration, and the court on November 24, 2008, granted it, concluding that the petition was indeed timely.1
On March 11, 2009, petitioner filed a motion to amend the Rule 37.1 petition and also filed an amended petition, which was verified. The allegations in the amended petition appear to reiterate and overlap those raised in the initial petition. While there is no order in the record granting the motion to amend the petition, the court held a hearing at which it considered claims raised in the amended petition. As the court considered the allegations in the amended petition, it may be assumed that the court permitted the petition to be amended. On June 16, 2009, the trial court entered an order denying the relief sought that appears to cover both petitions.
Petitioner did not file a timely notice of appeal from the order. Now before us is his motionfor rule on clerk, seeking to proceed with the appeal. The motion is treated as a motion for belated appeal inasmuch as a timely notice of appeal is not contained in the record. See Douglas v. State, 2009 Ark. 468 (per curiam); see also Holland v. State, 358 Ark. 366, 190 S.W.3d 904 (2004) (per curiam) (citing Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam)).
As it is clear that petitioner could not prevail on appeal, the motion is denied. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. See Pierce v. State, 2009 Ark. 606 (per curiam); see also Buckhanna v. State, 2009 Ark. 490 (per curiam).
In determining whether petitioner could prevail if the appeal were permitted to go forward, the threshold question is whether the filing of the first timely, but unverified, petition vested jurisdiction in the court to consider the allegations contained in both the first petition and the second petition which was properly verified but not filed within the required sixty-day period allowed to file a petition under the rule.
Again, only the unverified first petition was timely filed. As it was not verified, it was subject to dismissal. See Bunch v. State, 370 Ark. 113, 257 S.W.3d 533 (2007) (per curiam). The case of Shaw v. State, 363 Ark. 156, 211 S.W.3d 506 (2005) (per curiam), was similar procedurally. In Shaw, the petitioner first filed a timely, but unverified, Rule 37.1 petition. He then filed an amended petition that was also unverified, and later filed a second amended petition which was verified. The trial court denied postconviction relief, and Shaw appealed to this court. The State filed a motion to dismiss the appeal on the ground that the...
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