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Billups v. State

Court of Appeals of Arkansas, Division IV

November 6, 2019

TERRANCE BILLUPS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-1299] HONORABLE ROBIN F. GREEN, JUDGE

          Terrance Billups, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Senior Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, JUDGE

         Terrance 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.

         In 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.

         Billups 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 August 2018.

         In 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 this court.[1]

         Jurisdiction 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.

         Billups's 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 mail; and
(ii) the petition is filed pro se; and
(iii) the petition is deposited with first-class postage prepaid, addressed to the clerk of ...

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