ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

OCTOBER 16, 2003

PATRICK L. SHERMAN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-533

PRO SE MOTION FOR RULE ON CLERK TO LODGE RECORD BELATEDLY [CIRCUIT COURT OF CLARK COUNTY, NO. CR 95-42, HON. JOHN A. THOMAS, JUDGE]

MOTION DENIED

Per Curiam

In 1995, Patrick L. Sherman was found guilty by a jury of multiple felony offenses for which an aggregate term of forty years' imprisonment was imposed. We affirmed. Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996).

In 1996, Sherman filed in the trial court a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. The petition was denied on the ground that it was not timely filed. No appeal was taken.

In 2001, Sherman filed a second petition under Rule 37.1, which was also denied. Sherman filed a timely notice of appeal but did not perfect the appeal.

In 2002, Sherman filed a third Rule 37.1 petition, which was denied by order entered October 22, 2002. Petitioner Sherman then filed a motion, asking the circuit court to make findings of fact with respect to the Rule 37.1 petition. The motion was denied December 27, 2002. Petitioner filed a timely notice of appeal from the December 27, 2002, order, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).1

Now before us is petitioner's motion to file the record belatedly. We need not consider petitioner's grounds for the late tender of the record inasmuch as it is clear that any appeal of the December 27, 2002, order would be wholly without merit.

Rule 37.2(b) provides that all grounds for relief must be raised in the original petition filed under the rule. 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 in 1997, it was denied with prejudice; therefore, petitioner was procedurally barred from proceeding again under the rule.

Motion denied.

Arnold, C. J., not participating.

1 The record was tendered here 124 days after the notice of appeal was filed.