FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-961]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE.
Law Firm, by: Michael K. Kaiser, Megan M. Wilson, and William
O. "Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge.
Cortez Lamont Gould appeals after the Faulkner County Circuit
Court entered an order denying his petition for
postconviction relief filed pursuant to Arkansas Rule of
Criminal Procedure 37. Gould raises four points on appeal,
claiming ineffective assistance by his trial counsel. We
remand for the record to be supplemented, and we order
appellant to file a supplemental addendum.
was convicted in a jury trial of aggravated robbery and theft
of property, with sentence enhancements for using a firearm
in the commission of the offenses. Gould was sentenced to
forty years in prison. Gould appealed from his convictions,
arguing that the trial court erred in denying his motion for
a mistrial due to alleged juror misconduct. We affirmed his
convictions in Gould v. State, 2016 Ark.App. 124,
484 S.W.3d 678, and our mandate was issued on March 15, 2016.
filed in the trial court a pro se petition for postconviction
relief under Rule 37, claiming ineffective assistance of
counsel and asking for a new trial. Gould's Rule 37
petition was file-marked on May 25, 2016, which was
seventy-one days after our mandate issued. The trial court
held a hearing on the petition and entered an order denying
Rule 37 relief on the merits of the petition on April 19,
2018. Gould appealed from the trial court's April 19,
2018 order denying relief.
Gould filed his brief in this appeal but before the case was
submitted, the State filed a motion to dismiss Gould's
appeal. In its motion, the State argued that Gould's Rule
37 petition was untimely filed in the trial court and that
there was a lack of compliance with the prison mailbox rule.
The State's motion to dismiss was passed until submission
of the case, and we now consider the motion.
appeal from an order denying a petition for postconviction
relief will not be allowed to proceed when the appellant
could not prevail. Justus v. State, 2012 Ark. 91.
When a Rule 37 petition is not timely filed, the trial court
lacks jurisdiction to consider the petition. Joslin v.
State, 2015 Ark. 328. The time requirements are
mandatory, and when a petition under Rule 37 is not timely
filed, a trial court shall not consider the merits of the
petition. Hendrix v. State, 2016 Ark. 168.
Rule of Criminal Procedure 37.2(c)(ii) provides that,
"If an appeal was taken of the judgment of conviction, a
petition claiming relief under this rule must be filed in the
circuit court within sixty (60) days of the date the mandate
is issued by the appellate court." In this case
Gould's Rule 37 petition was filed on May 25, 2016, which
was not within sixty days of our mandate.
at the time Gould's pro se Rule 37 petition was filed, he
was confined in a correctional facility. Rule 37.2(g), which
is sometimes referred to as the prison mailbox rule,
(g) Inmate filing. For purposes of subsection (c) of
this rule, a petition filed pro se by a person confined in a
correctional or detention facility that is not timely under
the provisions of subsection (c) of this rule shall be deemed
filed on the date of its deposit in the facility's legal
mail system if the following conditions are satisfied:
(i) on the date the petition is deposited in the mail, the
petitioner is confined in a state correctional facility, a
federal correctional facility, or a regional or county
detention facility that ...