Cite as 2009 Ark. 180 ARKANSAS SUPREME COURT No. CR 08-1473 Opinion Delivered April 2, 2009 PRO SE MOTIONS FOR RECORD AT PANTHENIE GREEN PUBLIC EXPENSE AND FOR Appellant EXTENSION OF TIME TO FILE APPELLANT’S BRIEF [CIRCUIT COURT OF CRAIGHEAD COUNTY, v. WESTERN DISTRICT, CR 2006-471, HON. JOHN N. FOGLEMAN, JUDGE] STATE OF ARKANSAS Appellee APPEAL DISMISSED; MOTIONS MOOT. PER CURIAM A judgment entered on March 10, 2008, reflects that appellant Panthenie Green entered a negotiated plea ofguilty or nolocontendere torape and wassentenced to168months’ incarceration. OnJuly9,2008, appellant filed inthetrial courta petition tovacate underArkansas RuleofCivil Procedure 60. Thecourt denied the petitionas untimely and appellant lodged an appeal of the order in this court. Appellant has filed motions requestingtherecordbeprovidedto him and an extension oftimeto filehisbrief. Becausewedismiss theappeal, themotions aremoot. 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. Boothv. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam). This court has consistentlyheld that Rule 60 does not provide an avenuefor postconviction relief. State v. Rowe, 374Ark. 19, 285S.W.3d614 (2008); Statev. Wilmoth, 369 Ark. 346, 255S.W.3d419 (2007); McArtyv. State, 364 Ark. 517, 221 S.W.3d 332 (2006) (per curiam). Wehave acknowledged thatthe theorybehind Rule 60 has been applied in those criminal
cases where we recognized a court’s power to correct a judgment nunc pro tunc to make it speak the truth. Dawson v. State, 343 Ark. 683, 38 S.W.3d 319 (2001). Appellant’s petition did not seek to correct the judgment; it sought to challenge the judgment through a collateral attack, as may be appropriate through a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1. The trial court could not treat the petition to vacate as a petition for postconviction relief under Rule 37.1 because, as such, it would not have been timely. Where a conviction was obtained on a plea of guilty, Arkansas Rule of Criminal Procedure 37.2(c) requires that the petition for postconviction relief must be filed within ninety days of the entry of the judgment. In this case, the petition to vacate was filed 121 days after the judgment was entered. 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 (2006) (per curiam). The trial court had no jurisdiction to consider the petition under either Rule 60 or Rule 37.1. Because appellant cannot prevail on appeal, the appeal is dismissed and the motions are moot. Appeal dismissed; motions moot. -2-
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