ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 1, 2001

CHARLES FIELDS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-937

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF GARLAND COUNTY, NO. CR 96-540-CC, HON. TOM SMITHERMAN, JUDGE]

MOTION FOR RULE ON CLERK DENIED

Charles Fields was charged with three felony offenses which were severed for trial. He was found guilty in Count III of possession of a controlled substance with intent to deliver and sentenced as a habitual offender to a term of 480 months' imprisonment and a fine of $40,000. The court of appeals affirmed. Fields v. State, CACR 98-706 (March 10, 1999). On March 24, 1999, six days before the court of appeals' mandate was issued, Fields 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, and an attorney apparently retained by Fields filed an untimely notice of appeal. When counsel tendered the record to this court, our clerk declined to lodge it because of the late notice of appeal. Now before us is Fields' pro se motion for rule on clerk seeking to lodge the record. He places the fault on his attorney for not filing a timely notice of appeal; but, as the Rule 37 petition filed in the trial was clearly untimely, the motion for rule on clerk must be denied. 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 trial court correctly determined that the petition for postconviction relief was untimely and thus subject to denial. The petition was filed by appellant before the court of appeals' 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. This court has held that 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 rule on clerk denied.