ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

MICHAEL WASHINGTON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-409

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF PIKE COUNTY, NO. CR 99-3, HON. CHARLES A. YEARGAN, JUDGE]

MOTION DENIED

On June 15, 1999, Michael Washington pleaded guilty to three felony offenses for which an aggregate sentence of 288 months' imprisonment was imposed. One year later on June 5, 2000, Washington filed in the trial court a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 challenging the judgment. The trial court denied the petition, and Washington did not appeal.

Now before us is petitioner Washington's motion for belated appeal of the order. We need not consider petitioner's reasons for failing to perfect an appeal because the petition filed in the trial court was untimely, and 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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark.236,

920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); 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).

Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition attacking a judgment entered on a plea of guilty is untimely if not filed within ninety days of the entry of judgment pursuant to the plea of guilty. The ninety-day period to file a motion under Criminal Procedure Rule 37 expired in appellant's case on September 13, 1999, but appellant did not file his motion for postconviction relief until June 5, 2000, making the motion approximately nine months late. As the time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, the circuit court could not grant relief on an untimely petition and appellant was thus procedural barred from proceeding under the rule. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Moreover, even if the petition had been timely filed, the record reflects that it was the second Rule 37 petition filed by petitioner, making it subject to dismissal pursuant to Rule 37-2(b). (The first petition was denied September 9, 1999.) Rule 37.2(b) provides that all grounds for relief must be raised in the original petition. A petitioner is not entitled to file a second petition under the rule, unless the original petition was specifically denied without prejudice to filing a subsequent petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). When petitioner's original petition was denied, it was denied with prejudice; therefore, petitioner was procedurally barred from proceeding again under the rule.

Motion denied.