ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 18, 2003

JAMES MATHEW MARLIN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-586

PRO SE MOTION FOR RULE ON CLERK TO PROCEED WITH APPEAL OF POSTCONVICTION ORDERS [CIRCUIT COURT OF MADISON COUNTY, NO. CR 2001-54, HON. WILLIAM A. STOREY, JUDGE]

MOTION DENIED

Per Curiam

In 2001, James Mathew Marlin was charged in Washington County with kidnapping a woman. He was charged in Madison County with capital murder in the death of the kidnapping victim.

On September 6, 2002, judgment was entered in the Circuit Court of Madison County reflecting that Marlin had entered a plea of guilty to the lesser included offense of murder in the first degree and had been sentenced to life imprisonment. Marlin also entered a plea of guilty on September 6, 2002, to the Washington County charge of kidnapping and was sentenced to thirty years' imprisonment.

On December 9, 2002, Marlin filed a motion in the Circuit Court of Madison County, asking that the court grant him "belated reconsideration" of "the relief granted" pursuant to Criminal Procedure Rule 37.1. The court denied the motion in an order entered December 10, 2002. Instead of filing a timely notice of appeal from that order, petitioner Marlin filed a motion for reconsideration of his "Rule 37 motion" on January 3, 2003, despite the provision in Rule 37.2(d) which provides that the decision of the court on a Rule 37.1 petition is final and that no petition for rehearing will be considered. The motion was denied in an order entered January 16, 2003, and petitioner filed a pro se notice of appeal from the January 16, 2003 order.

Petitioner did not tender the record on appeal to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a). Now before us is petitioner's motion for rule on clerk seeking to lodge the record belatedly. We need not consider petitioner's grounds for the request to lodge the record belatedly inasmuch as he could not prevail in an appeal from the January 16, 2003, order even if the appeal were permitted to proceed.

As stated, Rule 37.2(d) specifically provides that an order denying a Rule 37.1 petition is final; thus, petitioner was not permitted under the rule to proceed with a motion for reconsideration. Moreover, the original request for relief under the rule filed December 9, 2002, was untimely pursuant to 37.2(c) which provides that any request for relief under the rule must be filed within ninety days of the date the judgment of conviction was entered following a plea of guilty. Petitioner filed his initial pleading ninety-four days after the judgment was entered. Time limitations imposed in Criminal Procedure Rule 37 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).

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). Accordingly, the motion to proceed with the appeal is denied.

Motion denied.

Thornton, J., not participating.