Gray v. State
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Cite as 2010 Ark. 216
SUPREME COURT OF ARKANSAS
No.
CR 10-254
Opinion Delivered
RUFUS GRAY
Petitioner
v.
STATE OF ARKANSAS
Respondent
May 6, 2010
PRO SE MOTIONS FOR RULE ON
CLERK AND TO ENTER EXHIBITS
AS EVIDENCE [CIRCUIT COURT
OF CLARK COUNTY, CR 2004-217,
HON. ROBERT E. McCALLUM,
JUDGE]
MOTION FOR RULE ON CLERK
TREATED AS MOTION FOR
BELATED APPEAL AND DENIED;
MOTION TO ENTER EXHIBITS AS
EVIDENCE MOOT.
PER CURIAM
On February 27, 2008, judgment was entered reflecting that petitioner Rufus Gray had
been found guilty by a jury of attempted rape and sentenced to 560 months’ imprisonment.
A fine of $7,500 was also imposed. No appeal was taken, and petitioner sought leave to
proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of
Appellate Procedure–Criminal (2010). This court denied the motion. Gray v. State, CR 08994 (Ark. Oct. 30, 2008) (unpublished per curiam).
On October 27, 2009, petitioner filed in the trial court a pro se motion for leave to
proceed with a belated petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009),
Cite as 2010 Ark. 216
a Rule 37.1 petition, and a motion to enter exhibits as evidence. The pleadings were denied
on the day they were filed. Petitioner did not file a timely notice of appeal from the order.
Now before us is petitioner’s motion for rule on clerk in which he seeks leave to proceed
with an appeal of the order. As a notice of appeal was not timely filed, we treat the motion
as a motion for belated appeal under Rule 2(e). See Holland v. State, 358 Ark. 366, 190
S.W.3d 904 (2004) (per curiam) (citing Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000)
(per curiam)).
We need not consider petitioner’s grounds for a belated appeal of the order because
it is clear from the record that he could not prevail on appeal if the motion were granted. An
appeal from an order that denied a petition for postconviction relief will not be permitted to
go forward where it is clear that the appellant could not prevail. See Tillman v. State, 2010
Ark. 103 (per curiam); Pierce v. State, 2009 Ark. 606 (per curiam); Grissom v. State, 2009 Ark.
557 (per curiam); see also 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 Rule of Criminal Procedure 37.2(c) (2009), if an appeal was not
taken from a judgment of conviction, a petition under the rule must be filed in the circuit
court within ninety days of the date the judgment was entered. There is no provision in the
rule for a belated petition. Petitioner did not timely file a Rule 37.1 petition in the trial
court, and he was not entitled to proceed with a belated petition. Time limitations imposed
in Rule 37.2(c) are jurisdictional in nature, and the circuit court was correct to deny the
motion to file a belated petition. See Tillman, 2010 Ark. 103 (citing Lauderdale v. State, 2009
2
Cite as 2010 Ark. 216
Ark. 624 (per curiam)); see also Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).
The instant motion to proceed with an appeal is denied. The motion to enter exhibits
as evidence is moot.
Motion for rule on clerk treated as motion for belated appeal and denied; motion to
enter exhibits as evidence moot.
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