ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 12, 2003

ASHFORD T. BOYLAND

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-333

PRO SE MOTIONS FOR ACCESS TO TRANSCRIPT TO PREPARE BRIEF AND FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF ARKANSAS COUNTY, NORTHERN DISTRICT, NO. CR 99-83]

APPEAL DISMISSED; MOTIONS MOOT

Ashford T. Boyland was found guilty of robbery, felon in possession of a firearm, and misdemeanor theft of property. An aggregate sentence of twenty-six years' imprisonment was imposed. The court of appeals affirmed. Boyland v. State, CACR 00-1427 (Ark. App. September 26, 2001).

On October 18, 2002, Boyland filed in the trial court a pro se pleading entitled "Notice of Belated Appeal," in which he invoked Criminal Procedure Rule 37.1 and further noted that the trial court had previously denied a Rule 37.1 petition that he had filed on the ground that it was not timely. In the pleading, Boyland reiterated the grounds in that earlier petition and concluded with the prayer that he be granted a new trial. The "Notice of Belated Appeal" was denied, and the record on appeal from the order has been lodged here.

Appellant Boyland asks by pro se motion that he be granted access to the transcript of his

trial to prepare the appellant's brief. He also seeks an extension of time to file the brief.

We declare the motions moot and dismiss the appeal because it is apparent that appellant could not be successful on appeal. 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. 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).

If the pleading filed in the trial court was intended by appellant as a petition for postconviction relief pursuant to be Criminal Procedure Rule 37.1, Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate on affirmance of the judgment was issued. Appellant did not file the "Notice of Belated Appeal" until approximately two years after the mandate of the court of appeals was issued. Time limitations imposed in Criminal Procedure Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Moreover, if the pleading was indeed a subsequent Rule 37.1 petition, Rule 37.2 (c) limits the petitioner to one petition under the rule, unless the original petition was denied without prejudice to filing a second petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981).

If appellant intended the pleading to be a motion for belated appeal of an order which

denied a petition under Rule 37.1, the trial court was without jurisdiction to consider such a motion. Ark. R. Crim. P. 2(e) provides that this court alone may grant leave to proceed with a belated appeal. Gray v. State, 227 Ark. 442, 642 S.W.2d 306 (1982); Ellis v. State, 276 Ark. 560, 637 S.W.2d 288 (1982). The trial court was thus without authority to grant a belated appeal of a prior order entered in appellant's case.

Appeal dismissed; motions moot.

Corbin, J., not participating.

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