ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 18, 2001

JAMES EARL RYCHTARIK

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-968

PRO SE MOTION FOR BELATED APPEAL OF POSTCONVICTION ORDER [CIRCUIT COURT OF CLEBURNE COUNTY, NO. CR 95-138, HON. JOHN DAN KEMP, JUDGE]

MOTION DENIED

James Earl Rychtarik was found guilty by a jury of murder in the second degree and possession of a controlled substance with intent to deliver and sentenced as a habitual offender to consecutive terms of life and ten years imprisonment. We affirmed. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). On October 19, 1998, eight days before the mandate was issued, Rychtarik filed in the trial court a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 seeking to have the judgment vacated. The Rule 37 petition was denied. No appeal was taken, and Rychtarik now asks to be permitted to proceed with a belated appeal of the order.

The motion is denied because the Rule 37 petition filed in the trial was clearly untimely. This court has consistently held that an appeal of the denial of postconviction relief will be not be permitted to go forward where it is clear that the Rule 37 petition was not timely filed.. Seaton

v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, supra; Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

The Rule 37 petition was filed by petitioner before the mandate following affirmance of the judgment was issued. As a result, the trial court did not have jurisdiction to consider the merits of the petition. A petition under Criminal Procedure Rule 37 must be filed after the mandate is issued because, when a judgment is appealed, the circuit court does not regain jurisdiction over the case until that event occurs. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945).

Motion for belated appeal denied.