Smith v. State , 2013 Ark. 422 ( 2013 )

Cite as 2013 Ark. 422SUPREME COURT OF ARKANSAS
No. CR-13-613
Opinion Delivered October 24, 2013
TIMOTHY L. SMITH APPELLEE’S MOTION TO DISMISS
APPELLANT FOR LACK OF JURISDICTION
[JEFFERSON COUNTY CIRCUIT
v. COURT, 35CR-10-126, HON. JODIE
RAINES DENNIS, JUDGE]
STATE OF ARKANSAS
APPELLEE
MOTION GRANTED; APPEAL
DISMISSED.
PER CURIAM
On May 15, 2012, judgment was entered in the Jefferson County Circuit Court
reflecting that appellant Timothy L. Smith had entered a negotiated plea of guilty to
aggravated residential burglary, committing a terroristic act, aggravated assault, and aggravated
robbery. An aggregate sentence of 180 months’ imprisonment was imposed to be followed
by an additional 72 months’ suspended imposition of sentence. On March 4, 2013, appellant
filed in the circuit court a pro se petition for postconviction relief pursuant to Arkansas Rule
of Criminal Procedure 37.1 (2012). The petition was denied, and appellant lodged an appeal
in this court from the order. Now before us is the appellee’s motion to dismiss the appeal on
the ground that the petition was not timely filed.
The motion is granted, as it is evident from the record that appellant could not succeed
on appeal. 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.
Cite as 2013 Ark. 422Murphy v. State, 2013 Ark. 243 (per curiam).
Arkansas Rule of Criminal Procedure 37.2(c) requires that, where an appellant entered
a plea of guilty, a petition must be filed within ninety days of the date of entry of judgment.
Ark. R. Crim. P. 37.2(c)(i). Appellant filed his petition far outside the ninety-day period.
The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not
met, a circuit court lacks jurisdiction to grant postconviction relief. Talley v. State, 2012 Ark.
314 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). The
petition before the circuit court was not timely filed as to the judgment-and-commitment
order; thus, the circuit court lacked jurisdiction to grant the relief sought. Where the circuit
court lacks jurisdiction, the appellate court also lacks jurisdiction. Nooner v. State, 2013 Ark.
13 (per curiam).
Motion granted; appeal dismissed.
Timothy L. Smith, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.
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