Cite as 2009 Ark. 159 (unpublished) ARKANSAS SUPREME COURT No. CR 08-1316 Opinion Delivered March 19, 2009 PRO SE MOTIONS FOR KIARA SMITH APPOINTMENT OF COUNSEL, Appellant DISCOVERY, EXTENSION OF TIME, AND FOR AMENDED BRIEF AND PRO SE PETITION FOR WRIT OF v. MANDAMUS [CIRCUIT COURT OF MISSISSIPPI COUNTY, CHICKASAWBA DISTRICT, CR 96-STATE OF ARKANSAS 17, HON. CINDY THYER, JUDGE] Appellee APPEAL DISMISSED; MOTIONS AND PETITION MOOT. PER CURIAM A judgment entered in Mississippi County Circuit Court on August 15, 2006, reflects that appellant Kiara Smith was found guilty of robbery in a trial to the court and sentenced to 48 months’ imprisonment as a result of the revocation of a previous suspended imposition of sentence. On May 27, 2008, appellant filed two petitions to correct an illegal sentence under Arkansas Code Annotated § 16-90-111 (Supp. 2003). The trial court entered an order denying the petitions on August 21, 2008, and appellant lodged an appeal of the order in this court. Appellant brings a number of motions in which he requests appointment of counsel, discovery, an extension of time, and permission to file an amended brief, apparently to address
Cite as 2009 Ark. 159 (unpublished) issues concerning the second petition to correct an illegal sentence. Appellant has also filed in this appeal a petition for writ of mandamus seeking to obtain a copy of the order denying the petitions from the circuit clerk. Because it is clear that appellant cannot prevail, we dismiss the appeal and the motions and petition for writ of mandamus are moot. This court has consistently held that 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. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam). In each of the two petitions under section 16-90-111, petitioner raised a number of claims. The claims included allegations of ineffective assistance of counsel and insufficient evidence in both petitions, allegations of speedy trial violations, coercion, an inadequate indictment, that the period of the suspension of sentence had lapsed prior to the revocation, a failure to follow proper interrogation procedures, and judicial bias. Because appellant raised claims that would be cognizable in a petition for relief under Arkansas Rule of Criminal Procedure 37.1, appellant’s petitions were subject to the time restraints for such petitions set forth in Arkansas Rule of Criminal Procedure 37.2. See Womack v. State, 368 Ark. 341, 245 S.W.3d 154 (2006) (per curiam). Where a petition includes issues that would be cognizable in a petition under Rule 37.1, section 16-90-111 is superseded to the extent that it conflicts with the time limitations for postconviction relief under Rule 37.2(c). Id. Appellant did not appeal his conviction. Where a conviction was not appealed, Rule 37.2(c) requires that the petition for -2-
Cite as 2009 Ark. 159 (unpublished) postconviction relief must be filed within ninety days of the entry of the judgment. In this case, the judgment was entered more than a year before appellant filed the petitions. The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition. Womack v. State, 368 Ark. 341, 245 S.W.3d 154. The circuit court could not grant relief on either of the petitions contained in the record and it is clear that appellant cannot prevail. Appeal dismissed; motions and petition moot. -3-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.