Kedrick Darrough v. State of Arkansas
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ARKANSAS SUPREME COURT
No. CR 07454
Opinion Delivered
KEDRICK DARROUGH
Appellant
November 8, 2007
APPELLEE’S MOTION TO DISMISS
[CIRCUIT COURT OF DREW
COUNTY, CR 200566, HON. ROBERT
BYNUM GIBSON, JR., JUDGE]
v.
STATE OF ARKANSAS
Appellee
MOTION GRANTED; APPEAL
DISMISSED.
PER CURIAM
A jury found appellant Kedrick Darrough guilty of possession of cocaine with intent to deliver
and possession of marijuana with intent to deliver and sentenced him to an aggregate term of 1,080
months’ imprisonment. Appellant pursued an appeal of the judgment, and this court granted a motion
for rule on the clerk to lodge the record. Darrough v. State, ___ Ark. ___, ___ S.W.3d ___ (Mar.
22, 2007) (per curiam). In accordance with the order, that appeal was submitted to the Arkansas
Court of Appeals and the judgment has now been affirmed. Darrough v. State, CACR 07223 (Ark.
App. Oct. 24, 2007).
During the time that the appeal was pending, on March 20, 2007, appellant filed in the trial
court a petition that sought to vacate and set aside the judgment. While appellant raised some
allegations in that petition which were not appropriate to a petition under that act, he based his plea
for relief solely on Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified
as Ark. Code Ann. §§ 16112201 – 16112208 (Repl. 2006). The trial court denied the petition,
and appellant now brings this appeal of that order in this court. The appellee State has filed a motion
to dismiss the appeal, arguing that neither the trial court nor this court has jurisdiction to consider the
matter.
We agree that the trial court did not have jurisdiction to hear appellant’s petition for relief
under Act 1780. Section 16112201(a) and section 16112202 both clearly state that a proceeding
under the act may be brought “[e]xcept when direct appeal is available.” Appellant cites Echols v.
State, 350 Ark. 42, 84 S.W.3d 424 (2002) (per curiam), as authority that the circuit court has
jurisdiction to consider a petition even though an appeal may be pending in this court or the court of
appeals. However, that case dealt with an appeal of a petition for postconviction relief under Ark.
R. Crim. P. 37.1, not a direct appeal of the judgment. Even under those circumstances, where an
appeal that was not a direct appeal was pending, we found it prudent to stay the appellate proceeding
under section 16112201(b). Here, a direct appeal of the judgment was pending, and the statute
clearly does not permit a cause of action under these circumstances.
Appellant further argues that his action was not barred because the record had not been
lodged when his petition was filed. Nevertheless, a direct appeal was still available to him. It was
not made unavailable simply because counsel was required to file a motion for rule on clerk to lodge
the record so that the case might proceed. Here, it is evident that an appeal was still available at the
time appellant filed his petition because counsel did file a motion for rule on clerk, the motion was
granted, the record lodged and the appeal has now been docketed. That remedy was not foreclosed
when appellant filed his petition.
The trial court correctly determined that it could not address appellant’s petition while a direct
appeal remained available. Because the trial court did not have jurisdiction to address the petition
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on April 3, 2007, this court also lacks jurisdiction to address an appeal. Lawrence v. City of
Texarkana, 364 Ark. 466, 221 S.W.3d 370 (2006). Accordingly, we grant the State’s motion to
dismiss the appeal.
Motion granted; appeal dismissed.
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