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Smith v. State

Supreme Court of Arkansas

January 22, 2015

OLAJUWON SMITH, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Counsel Amended February 11, 2015.

NO. 04CR-08-1239. HONORABLE BRAD K. KARREN, JUDGE.

AFFIRMED; MOTIONS MOOT.

Olajuwon Smith, Pro se appellant.

Bradley Lewis Karran and Dustin McDaniel, Att'y Gen., by: Laura Kehler Shue, Ass't Att'y Gen., for appellee.

HART, J., dissents.

OPINION

Page 220

PRO SE APPEAL FROM THE BENTON COUNTY CIRCUIT COURT, MOTION TO COMPEL CIRCUIT CLERK TO LODGE ENTIRE RECORD, MOTION TO SUPPLEMENT ADDENDUM, AND MOTION FOR EXTENSION OF TIME TO FILE REPLY BRIEF

PER CURIAM

On November 14, 2013, judgment was entered reflecting that appellant Olajuwon Smith had entered pleas of guilty to multiple felony offenses. On January 21, 2014, appellant filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The petition was dismissed on January 23, 2014, on the ground that it did not comply with Rule 37.1(b), which sets out certain requirements for the form of a petition under the Rule. On January 31, 2014, appellant filed a second petition under Rule 37.1, which the court denied on February 14, 2014, on the ground that appellant was not entitled to file a second petition under the Rule inasmuch as the court had not dismissed the first petition without prejudice to filing a second petition. Appellant filed a notice of appeal on February 27, 2014, designating that the appeal was being taken from the February 14, 2014 order. Now before us is that appeal and several motions filed by appellant that pertain to the appeal. As we find that the February 14, 2014 order should be affirmed, the motions are moot.

Rule 37.2(b) provides that all grounds for relief available to a petitioner under the Rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. If a first petition under the Rule is denied without leave to proceed with a second petition, a petitioner under the Rule is barred from submitting a subsequent petition. Ewells v. State, 2014 Ark. 351, 439 S.W.3d 667 (per curiam); see also Cooper v. State, 2014 Ark. 243 (per curiam) (noting that Rule 37.2(b) does not permit a second petition for postconviction relief unless the first such petition was specifically denied without prejudice to filing a subsequent petition).

Failure to comply with Rule 37.1(b) is not a jurisdictional defect, and the trial court may rule on a petition that does not conform to the Rule. Moss v. State, 2013 Ark. 431 (per curiam); Barrow v. State, 2012 Ark. 197 (per curiam). We held in Moss that, when a petitioner timely files his verified petition that does not comply with Rule 37.1(b), the trial court has the discretion to act on the merits of the petition, dismiss it without prejudice to filing a petition that conforms to Rule 37.1(b), or

Page 221

dismiss the ...


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