Tomboli v. State
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Cite as 2010 Ark. 60
SUPREME COURT OF ARKANSAS
No. CR 09-1000
Opinion Delivered
RICHARD TOMBOLI
Petitioner
v.
STATE OF ARKANSAS
Respondent
February 4, 2010
PRO SE MOTION FOR BELATED
APPEAL OF ORDER [CIRCUIT
COURT OF LONOKE COUNTY, CR
2006-79, HON. PHILLIP WHITEAKER,
JUDGE]
MOTION DENIED.
PER CURIAM
In 2006, petitioner Richard Tomboli was found guilty by a jury of theft by receiving for
which a sentence of 360 months’ imprisonment was imposed. The Arkansas Court of Appeals
affirmed. Tomboli v. State, 100 Ark. App. 355, 268 S.W.3d 918 (2007). The court’s mandate was
issued on December 18, 2007.
On February 25, 2008, sixty-nine days after the mandate was issued, petitioner filed in
the trial court a pro se petition for postconviction relief pursuant to Arkansas Criminal
Procedure Rule 37.1. (2008). The trial court denied the petition. No appeal was taken and
petitioner now seeks leave to proceed with a belated appeal from the order.
We need not consider petitioner’s reasons for failing to perfect an appeal because it is
clear from the record that the Rule 37.1 petition was not timely filed in the trial court. This
court will not permit an appeal from an order that denied a petition for postconviction relief to
Cite as 2010 Ark. 60
go forward where it is clear that the appellant could not prevail. Mitchael v. State, 2009 Ark. 516
(per curiam) (citing Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam)); Pardue v.
State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d
13 (1996) (per curiam).
Pursuant to Arkansas Criminal Procedure Rule 37.2(c), if an appeal was taken, a petition
under the rule must be filed in the circuit court within sixty days of the date the mandate was
issued by the appellate court. As stated, petitioner filed the petition for Rule 37.1 relief sixtynine days after the date of the mandate in his case, making the petition untimely. Time
limitations imposed in Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant
relief on an untimely petition. Lauderdale v. State, 2009 Ark. 624 (per curiam).
Motion denied.
Brown, J., not participating.
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