ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

DECEMBER 11, 2003

RODNEY CHARLES WHITE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-985

PRO SE MOTION TO FILE A SUPPLEMENTAL BRIEF [CIRCUIT COURT OF ST. FRANCIS COUNTY, NO.95-342, CR 96-343, CR 00-254]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1996, judgments were entered reflecting that Rodney Charles White had entered a plea of guilty to second-degree forgery and attempted delivery of a controlled substance. An aggregate sentence of fifteen years' imprisonment was imposed with imposition of an additional five years' imprisonment suspended. Two years' probation was also imposed.

Shortly after White was paroled in 2000, the suspended sentence was revoked on the ground that White had committed additional felony offenses while on parole. White was subsequently convicted of aggravated assault, fleeing, and attempted delivery of a controlled substance. A total sentence of thirty-five years' imprisonment was imposed on the revocation of the 1996 suspended sentences and probation and the 2000 offenses. The judgment was entered on June 19, 2000.

On December 30, 2000, six months after the judgment was entered, White 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 White's motion to file a supplemental 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 Criminal Procedure Rule 37.2 (b) has superseded Ark.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).