ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

CONRAD L. SMITH

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-338

PRO SE MOTIONS FOR EXTENSIONS OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-355, HON. JOHN LANGSTON, JUDGE]

MOTIONS MOOT; APPEAL DISMISSED

Per Curiam

Conrad L. Smith was found guilty by a jury of theft by receiving and sentenced to 240 months' imprisonment. The court of appeals affirmed. Smith v. State, CACR 98-813 (Ark. App. February 9, 2000). The court of appeals' mandate was issued on February 29, 2000.

On December 5, 2002, Smith filed in the trial court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), contending that sentence was illegal. The court denied the petition, and the record has been lodged here on appeal.

Now before us are appellant Smith's three motions for extensions of time to file the appellant's brief. Because we find that the trial court did not err when it denied relief, we dismiss the appeal. The motions are moot. 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).

Appellant was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 1995) in that the petition filed in the trial court was untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 1995); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37.2(b) provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within sixty days of the date that the mandate of the appellate court affirming the judgment was issued. See Rule 37.2(c). The appellant here filed the petition challenging the judgment approximately thirty-three months after the mandate was issued in his case. The time limitations imposed in Rule 37 are jurisdictional in nature, and a circuit court may not grant relief on an untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111 (Supp. 1995). See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motions moot; appeal dismissed.

Thornton, J., not participating.