GARY ROBINSON v. STATE OF ARKANSAS , 2018 Ark. 406 ( 2018 )

Cite as 2018 Ark. 406
SUPREME COURT OF ARKANSAS
No. CR-18-493
Opinion Delivered: December 20, 2018
GARY ROBINSON
APPELLANT
PRO SE MOTION TO FILE A BELATED
V. BRIEF
[FAULKNER COUNTY CIRCUIT
STATE OF ARKANSAS COURT, NO. 23CR-15-276]
APPELLEE
APPEAL DISMISSED; MOTION MOOT.
SHAWN A. WOMACK, Associate Justice
Gary Robinson brings an interlocutory appeal from the order of the trial court that
denied his pro se motion for reconsideration of the order that denied his motion to file
an overlength amendment to his petition for postconviction relief pursuant to Arkansas
Rule of Criminal Procedure 37.1 (2015). Now before us is Robinson’s motion to file a
belated brief. Because the order that denied the motion for reconsideration was not a
final, appealable order, the appeal is dismissed. See Flowers v. State, 2018 Ark. 163, 544
S.W.3d 553; McCullough v. Kelley, 2018 Ark. 78. Therefore, the motion to file a belated
brief is moot.
On February 15, 2018, Robinson filed a Rule 37.1 petition challenging the
judgment of conviction entered in his criminal case and a motion seeking leave of the trial
court to file an overlength amendment to the Rule 37.1 petition.1 The trial court denied
the motion on March 29, 2018, and Robinson filed a motion for reconsideration on April
24, 2018, which was denied. Robinson then filed a “Notice of Interlocutory Appeal” and
lodged the instant appeal in this court.
Postconviction proceedings under Rule 37 are civil in nature, State v. Robinson, 2011
Ark. 90, because when an appeal arises from a collateral proceeding, the appeal is civil in
nature. Id. Rule 2 of the Arkansas Rules of Appellate Procedure–Civil (2017) lists the
orders from which an appeal may be taken. Generally, for an order to be appealable, it
must dismiss the parties from the court, discharge them from the action, or conclude their
rights to the subject matter in controversy. Fields v. Kelley, 2018 Ark. 39. An appeal will be
premature if the decision does not, from a practical standpoint, conclude the merits of the
case. Id.
When the petitioner in a Rule 37.1 proceeding desires to appeal from an adverse
ruling on some issue raised in the course of the proceeding, such as the denial of a motion
to amend the petition, he or she must raise the issue as part of the appeal from the final
Rule 37.1 order. See Dodson v. State, 326 Ark. 637, 643, 934 S.W.2d 198, 201 (1996); see
1
Rule 37.1(b) provides that a petition under the Rule must meet certain procedural
requirements, including a limit on the number of pages in the petition. Rule 37.2(e)
provides that the petition may be amended before it is acted on if the court grants
permission to file an amended petition.
2
also Preston v. State, 303 Ark. 106, 108, 792 S.W.2d 599, 600 (1990) (Because the trial court
had not yet ruled on claims of ineffective assistance of counsel raised in a motion for new
trial, there was no appealable order entered on the issue.). The petitioner is not permitted
to proceed with an interlocutory appeal of the denial of motions filed in the course of the
Rule 37.1 proceeding.
Appeal dismissed; motion moot.
3