Nooner v. State

2013 Ark. 317

• Court: Supreme Court of Arkansas
• Decided: September 5, 2013
• Docket: CR-13-544
• Status: Published

Opinion

Cite as 2013 Ark. 317

SUPREME COURT OF ARKANSAS No. CR-13-544

Opinion Delivered September 5, 2013

PRO SE MOTIONS FOR TERRICK NOONER APPOINTMENT OF COUNSEL, FOR APPELLANT EXTRAORDINARY WRITS AND EXPEDITED CONSIDERATION AND v. TEMPORARY RELIEF, FOR WRIT OF CERTIORARI, AND FOR SANCTIONS STATE OF ARKANSAS [SALINE COUNTY CIRCUIT COURT, APPELLEE 63CR-93-133, HON. GRISHAM PHILLIPS, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT.

PER CURIAM In 1993, appellant Terrick Nooner was found guilty by a jury of aggravated robbery and

sentenced to life imprisonment. We affirmed. Nooner v. State, 319 Ark. 335, 891 S.W.2d 366

(1995). The mandate in the case was issued in 1995.

On March 25, 2013, appellant filed in the trial court a pro se petition for postconviction

relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1993). The trial court denied the

petition, and appellant has lodged an appeal in this court from the order. Now before us are

appellant’s motions for appointment of counsel, for extraordinary writs and expedited

consideration and temporary relief, for writ of certiorari, and for sanctions to be imposed.

As it is clear from the record that appellant could not prevail if the appeal were permitted

to go forward, the appeal is dismissed, and the motions are moot. An appeal from an order that Cite as 2013 Ark. 317

denied a petition for postconviction relief will not be permitted to proceed where it is clear that

the appellant could not prevail. Burks v. State, 2013 Ark. 198 (per curiam); Davis v. State, 2013

Ark. 118 (per curiam).

The trial court did not err in holding that the Rule 37.1 petition filed by appellant in 2013

was untimely. When a judgment is affirmed on appeal, and the mandate is issued, a petitioner

under the Rule is required, pursuant to Arkansas Rule of Criminal Procedure 37.2(c)(ii), to file

his or her petition with the clerk of the trial court within sixty days of the date that the mandate

was issued. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Appellant’s petition was

filed approximately eighteen years after the mandate was issued in his case. Accordingly, he did

not timely file his petition, and it was subject to dismissal on that basis.

Time limitations imposed in Rule 37.2(c) for filing a petition are jurisdictional in nature.

Murphy v. State, 2013 Ark. 243 (per curiam); O’Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999);

see also Maxwell, 298 Ark. 329, 767 S.W.2d 303. If the time limitations are not met, a trial court

lacks jurisdiction to consider a Rule 37.1 petition. Holliday v. State, 2013 Ark. 47 (per curiam).

Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction. Holliday,

2013 Ark. 47 (citing Winnett v. State, 2012 Ark. 404 (per curiam)); see also Clark v. State, 362 Ark.

545, 210 S.W.3d 59 (2005) (citing Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995)).

Terrick Nooner, pro se appellant.

No response.