ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

OCTOBER 30, 2003

MICHAEL JACKSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-593

PRO SE MOTION FOR LEAVE TO FILE A BELATED HANDWRITTEN BRIEF [CIRCUIT COURT OF MISSISSIPPI COUNTY, CR 98-281, HON. JOHN N. FOGLEMAN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

Michael Jackson was convicted in 1999 of first-degree battery and sentenced to a term of 240 months' imprisonment. The court of appeals affirmed. Jackson v. State, CACR 99-325 (Ark. App. November 3, 1999).

Jackson subsequently filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, which was denied. We dismissed the appeal on the ground that the postconviction petition was not timely filed. Jackson v. State, CR 00-1383 (December 12, 2002) (per curiam).

In 2003, Jackson filed another collateral attack on the judgment in the trial court which he labeled "petition for declaratory judgment and mandamus relief conjoined." The court denied the petition, and Jackson has lodged the appeal in this court from the order. He seeks leave to file a handwritten belated brief.

As we find that appellant Jackson could not be successful on appeal, the appeal is dismissed. The motion is 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. Parduev. 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).

Regardless of the label placed on a petition for postconviction relief, it is considered a petition pursuant to Criminal Procedure Rule 37.1 if the grounds were cognizant under the rule.1 Any such petition is subject to the substantive and procedural rules embodied in Criminal Procedure Rule 37.1. Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). The grounds contained in the petition filed in the trial court in the instant case were clearly either cognizable under Rule 37.1 or constituted grounds for relief that could, and should, have been raised at trial or on the record on direct appeal.

Appellant first contended that the sentence imposed on him was illegal or illegally imposed. Rule 37.2(b) provides that all grounds for postconviction relief, including the assertion that a sentence is illegal or illegally imposed, 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. The petition here was filed more than three years after the mandate affirming the judgment was issued. Moreover, pursuant to Rule 37.2(b) all grounds for relief under the rule must be raised in the original petition filed. Appellant was not entitled to file multiple petitions for postconviction relief merely by labeling the petition as a petition for declaratory judgment or a mandamus petition. 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).

Appellant also argued that the arrest warrant in his case was illegal and should have been strickenat trial. The allegation pertaining to the arrest warrant was one which could have been settled at trial or on the record on appeal. Allegations which could have been settled at trial or on direct appeal are not grounds for postconviction relief even in a timely petition under Rule 37.1. Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989).

Appeal dismissed; motion moot.

1 This is to be distinguished from petitions for writs of habeas corpus which are filed not in the sentencing court but in the court in the jurisdiction in which the petitioner is in custody. Taylor v. State, 354 Ark. ____, ____S.W.3d ____(October 16, 2003).