ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 20, 2003

MISTY KAY MILLIKEN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-962

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF ARKANSAS COUNTY, SOUTHERN DISTRICT, NO. CR 2001-50, CR 2002-50]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

On September 19, 2002, judgment was entered reflecting that Misty Kay Milliken had entered a plea of guilty to commercial burglary and two counts of forgery in the second degree. An aggregate sentence of 108 months' imprisonment was imposed.

On March 12, 2003, nearly six months after the judgment was entered, Milliken filed in the trial court a pro se petition pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), contending that the sentences imposed were illegal. The court denied the petition, and the record has been lodged here on appeal.

Now before us is appellant Milliken's motion for extension of time to file her brief. Because we find that the trial court did not err when it denied relief, we dismiss the appeal. 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. 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 Criminal Procedure Rule 37.2 (b) has superseded Ark.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 provides that all grounds for postconviction relief must be raised in a petition under the rule filed within ninety days of the date that the judgment was entered pursuant to a plea of guilty.1 The time limitations imposed in Rule 37 are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appeal dismissed; motion moot.

1 The remedy provided by Criminal Procedure Rule 37.1 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).