Clyde E. Wallace v. State of Arkansas

2020 Ark. App. 537

• Court: Court of Appeals of Arkansas
• Decided: December 2, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 537 ARKANSAS COURT OF APPEALS DIVISION III No. CR-20-241

Opinion Delivered: December 2, 2020 CLYDE E. WALLACE APPELLANT APPEAL FROM THE GARLAND V. COUNTY CIRCUIT COURT [NO. 26CR-17-539] STATE OF ARKANSAS APPELLEE HONORABLE JOHN HOMER WRIGHT, JUDGE

DISMISSED

RITA W. GRUBER, Chief Judge

Clyde Wallace pleaded guilty in the Garland County Circuit Court to second-degree

sexual assault, and an order of judgment was entered on February 1, 2018, convicting him

thereon and sentencing him to twenty years’ imprisonment. No appeal was taken from that

order. On January 31, 2020, Wallace filed a pro se motion to withdraw his plea and vacate

his sentence. On February 3, 2020, the circuit court denied Wallace’s motion. Wallace filed

a timely appeal, which we dismiss.

Arkansas Rule of Criminal Procedure 26.1(a) provides that a “plea of guilty . . . may

not be withdrawn under this rule after entry of judgment.” Ark. R. Crim. P. 26.1(a) (2019).

If the defendant is in custody, a motion to withdraw a plea filed after entry of judgment will

be treated as a postconviction motion under Arkansas Rule of Criminal Procedure 37. Mims v. State, 360 Ark. 96, 97, 199 S.W.3d 681, 682 (2004); see also Hall v. State, 2009 Ark. 347

(holding that when a sentence has been entered and placed in execution prior to the filing

of a motion to withdraw the guilty plea upon which it was based, the motion must be treated

as having been made pursuant to Arkansas Rule of Criminal Procedure 37.1). If a conviction

was obtained on a plea of guilty, a postconviction petition under Rule 37 must be filed in

the appropriate circuit court within ninety days of the date of entry of judgment. Ark. R.

Crim. P. 37.2(c) (2019).

The petition in this case was filed almost two years after judgment was entered. The

time limits imposed by Rule 37 are jurisdictional in nature; if they are not met, a circuit

court lacks jurisdiction to consider the petition. Shaw v. State, 363 Ark. 156, 157, 211 S.W.3d

506, 508 (2005). If the circuit court is without jurisdiction to consider a petition, this court

is also without jurisdiction. See, e.g., Stearns v. State, 2019 Ark. App. 486. Accordingly, we

dismiss the appeal.

Dismissed.

GLADWIN and HARRISON, JJ., agree.

Clyde E. Wallace, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.