Gardner v. State Of Ark.

• Decision Date: 23 September 2010
• Docket Number: No. CR 10-510,CR 2004-1077,CR 10-510
• Citation: 2010 Ark. 344
• Parties: WALLACE A. GARDNER,Appellant v. STATE OF ARKANSAS,Appellee
• Court: Arkansas Supreme Court

2010 Ark. 344

WALLACE A. GARDNER, Appellant

v.STATE OF ARKANSAS, Appellee

No. CR 10-510

CR 2004-1077

Supreme Court Of Arkansas

Opinion Delivered September 23, 2010

PRO SE MOTION FOR PRODUCTION OF DOCUMENTS [CIRCUIT COURT OF PULASKI COUNTY

HON. TIMOTHY D. FOX, JUDGE]

APPEAL DISMISSED; MOTION MOOT.

PER CURIAM

In 2004, appellant Wallace A. Gardner was found guilty by a jury of capital murder and aggravated robbery. He was sentenced as a habitual offender to an aggregate term of life imprisonment without parole. We affirmed. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339 (2006).

On November 25, 2009, approximately three and one-half years after the mandate was issued following affirmance of the judgment, appellant filed in the trial court an unverified pro se petition to vacate the judgment pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The petition was denied on the ground that it was not timely filed.¹

Appellant lodged an appeal from the order in this court, and now before us is his pro se motion asking this court to compel the circuit court to produce certain documents. We need not consider the motion as it is clear from the record that he could not prevail on appeal if the motion were granted. 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. Tillman v. State, 2010 Ark. 103 (per curiam); Pierce v. State, 2009 Ark. 606 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); see also 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).

Arkansas Rule of Criminal Procedure 37.2(c) provides that when a direct appeal is taken following a 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." Ark. R. Crim. P. 37.2(c); Carter v. State, 2010 Ark. 231, __S.W.3d__(per curiam); see also Tillman, 2010 Ark. 103. Time limitations in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, a trial court lacks jurisdiction to grant postconviction relief. DeLoach v. State, 2010 Ark. 79 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989)); see also Croft v. State, 2010 Ark. 83 There is no provision in the rule for a belated petition. See Gray v. State, 2010 Ark. 216 (per curiam). If a trial court lacks jurisdiction as the result of the petitioner's failure to comply with Rule 37.2(c), this court likewise lacks jurisdiction to reach the merits of an appeal pertaining to the untimely petition. Wilmoth v. State, 2010 Ark. 315 (per curiam); Carter, 2010 Ark. 231, __S.W.3d__; see also Lawhon v. State, 328 Ark. 335, 942 S.W.2d 864 (1997) (per curiam).

Appeal dismissed; motion moot.

1. As the petition was not verified as required by Rule 37.1(c), it was also subject to dismissal on that ground. Croft v. State, 2010 Ark. 83 (per curiam).