ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 14, 2002

MACK STEPHENS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-777

APPEAL FROM THE CIRCUIT COURT OF VAN BUREN COUNTY, CR 96-59, HONORABLE MICHAEL MAGGIO, JUDGE

REVERSED AND REMANDED

On April 20, 1998, appellant was convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. He was sentenced to a total of twenty-three years' imprisonment and fined $10,000. Following trial, the circuit court relieved appellant's retained attorney, and appellant filed a pro se notice of appeal. Appellant, however, failed to timely lodge the record on appeal. We originally denied his motions for rule on the clerk to file the record belatedly and for appointment of counsel on appeal, but on December 9, 1999, we granted appellant a belated appeal and appointed his current counsel, David O. Bowden, to represent him. We thereafter affirmed appellant's convictions. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000).

Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The State moved for dismissal of the petition on the grounds that appellant did not file his petition within 90 days of entry of judgment, and therefore, based upon our opinion in Shoemate v. State, 339 Ark. 403, 5 S.W.3d 446 (1999), the circuit court did not possess jurisdiction to grantthe requested relief. The circuit court agreed, concluding that the petition was untimely filed, and dismissed it for a lack of jurisdiction. Because we find that the appellant timely filed his petition under Ark. R. Cr. P. 37.2(c), we reverse and remand.

Rule 37.2(c) clearly states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. Porter v. State, 339 Ark. 15, 18, 2 S.W.3d 73, 75 (1999). We have held that the filing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Id.

The prevailing distinction between Shoemate and appellant's case is that Shoemate failed to take an appeal of the judgment, and "thus, the sixty-day time limitation set forth in Rule 37.2(c) [was] not applicable to the facts of [his] case." See Shoemate, 339 Ark. at 407, 5 S.W.3d at 448. Here, however, we granted appellant a belated appeal, and subsequently affirmed. The mandate issued on October 19, 2000, and appellant filed his Rule 37 petition by fax on December 14, 2000. See Ark. R. Civ. P. 5(c)(2). Thus, appellant timely filed his petition within the sixty day time limit of Rule 37.2(c). Accordingly, we reverse and remand the case for consideration of appellant's Rule 37 petition.

Reversed and remanded.