FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-1299]
HONORABLE ROBIN F. GREEN, JUDGE
Terrance Billups, pro se appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Senior Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
Billups appeals the circuit court's denial of his
petition for postconviction relief and its decision to do so
without a hearing. We cannot reach the merits of
Billups's appeal, however, and must remand for
supplementation of the record and addendum.
September 2017, Billups pled guilty to one count of attempted
capital murder and two counts of aggravated assault on a
family or household member. He was sentenced to an aggregate
term of twenty-five years' imprisonment with an
additional fifteen years' suspended imposition of
sentence. The circuit court entered its sentencing order on
17 October 2017.
filed in the circuit court a pro se petition for
postconviction relief under Ark. R. Crim. P. 37 (2019),
claiming ineffective assistance of counsel and requesting an
evidentiary hearing and a new trial. Under Ark. R. Crim. P.
37.2(c)(i), Billups's petition had to be filed within
ninety days of the entry of judgment (in other words, by 15
January 2018). Billups's petition was file-marked on 24
January 2018, which was ninety-nine days after the sentencing
order was entered. Without convening a hearing, the circuit
court denied Billups's petition on the merits on 25 June
2018. Billups filed a notice of appeal from this order on 27
January 2019, Billups filed a motion for rule on clerk and
for belated appeal with the Arkansas Supreme Court. In that
motion, he explained that the Benton County circuit clerk had
sent the order denying his petition to the wrong prison unit,
which resulted in his untimely notice of appeal. On 30 May
2019, the supreme court granted Billups's motion for rule
on clerk and for belated appeal and transferred the case to
is a matter that we are obligated to raise on our own motion.
Hayes v. State, 2013 Ark. 450. An 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 circuit 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 circuit court shall not consider the merits of the
petition. Hendrix v. State, 2016 Ark. 168.
Rule 37 petition was filed on 24 January 2018, which was not
within ninety days of the entry of judgment. However, when
Billups'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, provides:
(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 maintains a system designed for legal
(ii) the petition is filed pro se; and
(iii) the petition is deposited with first-class postage
prepaid, addressed to the clerk of ...