Johnson v. State, 2010 Ark. 217 (Ark. 5/6/2010)

• Decision Date: 06 May 2010
• Docket Number: CR 10-309.
• Citation: 2010 Ark. 217
• Parties: Wilbert L. JOHNSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

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2010 Ark. 217 Wilbert L. JOHNSON, Appellant,
v.
STATE of Arkansas, Appellee. CR 10-309. Supreme Court of Arkansas. Opinion Delivered May 6, 2010.

Pro Se Motions for Copy of Transcript and for Extension of Time to File Brief and for Appointment of Counsel [Circuit Court of Pulaski County, Cr 2007-3648, Hon. Barry Sims, Judge].

Appeal Dismissed; Motions Moot.

PER CURIAM.

In 2008, appellant Wilbert L. Johnson was found guilty by a jury of breaking or entering, theft of property, and misdemeanor fleeing. An aggregate sentence of 180 months' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Johnson v. State, 2009 Ark. App. 201 (unpublished). The mandate following affirmance of the judgment was issued April 7, 2009.

On April 3, 2009, four days before the mandate was issued, appellant filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). A hearing was held on the petition and relief was denied. Appellant lodged an appeal here and now seeks by two motions a copy of the transcript lodged on appeal, an extension of time to file the appellant's brief, and appointment of counsel.

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We do not address the merits of the motions because it is clear from the record that appellant could not prevail on appeal because the Rule 37.1 petition was not timely filed. Accordingly, the appeal is dismissed, and the motions are moot. 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. 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).

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. 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 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. Tapp v. State, 324 Ark. 176, 920 S.W.2d 482 (1996) (per curiam). Once it is...