Poe v. State

617 S.W.2d 361, 273 Ark. 194, 1981 Ark. LEXIS 1340

• Court: Supreme Court of Arkansas
• Decided: June 22, 1981
• Docket: CR 81-11
• Status: Published

Opinions

Darrell Hickman, Justice.

Charles Joseph Poe appeals from a denial of Rule 37 relief. This relief must be denied for three reasons: Motion for a belated appeal must be filed within eighteen months of the date of commitment (Rules of Crim. Proc., Rule 36.9); a motion for Rule 37 relief must be filed within three years of the date of commitment (Rules of Crim. Proc., Rule 37.2 (c)); and, we cannot say that the judge was clearly wrong in his findings.

Poe was convicted of burglary and grand larceny in February, 1976, in the Faulkner County Circuit Court. His lawyer wrote to him at the penitentiary telling Poe of his right to appeal and enclosed a form for Poe to check and return if he wanted to appeal. When the lawyer did not hear from Poe, he called the penitentiary and talked to a warden who told him that Poe had received the letter. Poe denied that he ever received the letter.

In May, 1976, Poe filed a pro se petition for Rule 1 relief. On September 3, 1976, he was present in Faulkner Circuit Court on this petition. Poe’s petition was dismissed when he presented the following document which both he and his lawyer had signed:

I, Charles Joseph Poe, do desire to withdraw my previous request for a Rule 1 hearing in this case. I am making this request for withdrawal of my own free will and I do hereby state that I have not been subjected to any coercion or undue influence of any sort.

Thereafter Poe corresponded with regularity with the court through the clerk’s office. Eventually he learned that the transcript of his trial could not be produced because the court reporter had destroyed her notes. However, he did not file his petition for Rule 37 relief and for other relief until February, 1980.

On November 3, 1980, a Rule 37 hearing was held. The trial court examined the record and heard the testimony of Poe and his trial attorney. He concluded that Poe had knowingly waived his right to appeal. He also found no ineffectiveness on the part of Poe’s counsel and that the petition for Rule 37 relief had been filed beyond the three year limit.

We affirm. Poe suggests that his conviction was void and should be excepted from the three year rule. He states no grounds which would make that conviction void.

Affirmed.

Purtle and Hays, JJ., dissent.