Mason v. State

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                SUPREME COURT OF ARKANSAS
                                          No.   CR-13-975

                                                     Opinion Delivered   January 23, 2014


ERIC EUGENE MASON                                    PRO SE MOTION FOR
                                APPELLANT            TRANSCRIPT AND EXTENSION OF
                                                     BRIEF TIME [SEBASTIAN COUNTY
v.                                                   CIRCUIT COURT, FORT SMITH
                                                     DISTRICT, 66CR-11-602]
STATE OF ARKANSAS
                                  APPELLEE           HONORABLE STEPHEN TABOR,
                                                     JUDGE


                                                     APPEAL DISMISSED; MOTION
                                                     MOOT.


                                          PER CURIAM


       In 2011, appellant Eric Eugene Mason was found guilty by a jury of murder in the

second degree and sentenced as a habitual offender to 540 months’ imprisonment. The

Arkansas Court of Appeals affirmed. Mason v. State, 

.

       Appellant subsequently filed in the trial court a timely petition for postconviction relief

pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), seeking to vacate the

judgment. The petition was denied after a hearing, and appellant lodged an appeal in this

court from the order. Appellant timely filed the appellant’s brief after he filed the motion that

is now before us is in which appellant seeks a copy of the transcript lodged in this appeal and

an extension of time to file the brief.

       As it is clear from the record that appellant could not prevail on appeal, we dismiss the
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appeal.       The motion is moot.     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. Paige v. State, 

 (per curiam); Riddell v. State, 

(per curiam); see also Fowler v. State, 

 (per curiam).

          Appellant’s petition was not in compliance with the Rule in that it was not verified

in accordance with Rule 37.1(c). Rule 37.1(c) requires that the petition be accompanied by

an affidavit that is sworn before a notary or other officer authorized to administer oaths; in

substantially the form noted in that provision; and attesting that the facts stated in the petition

are true, correct, and complete to the best of petitioner’s knowledge and belief. Rule 37.1(d)

requires that the circuit clerk reject an unverified petition and that the circuit court or the

appellate court must dismiss a petition that fails to comply with Rule 37.1(c). Paige, 

; see also Williamson v. State, 

 (per curiam); Stephenson v. State, 

 (per curiam). Appellant’s signature on the petition was notarized, but there was no

verification that the facts stated in the petition were true, correct, and complete as required

by the Rule.1

          The verification requirement for a postconviction-relief petition is of substantive

importance to prevent perjury. Martin v. State, 

 (per curiam); Williamson, 2012



          1
        One of the exhibits to the Rule 37.1 petition was verified, but the verification clearly
pertained to the exhibit only. The exhibit was a description of discussions between appellant
and his attorney. The verification on the exhibit reads in its entirety, “I further swear that the
description of the incident contained herein, is a true, accurate and impartial description to the
best of my knowledge, information and belief.” The verification of the exhibit does not
substitute for verification of the petition itself.

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Ark. 170; Tucker v. State, 

 (per curiam); see Carey v. State, 

, 

 (1980). We have held that a circuit court lacks jurisdiction to consider

arguments raised in an unverified Rule 37.1 petition. Martin, 

; Williamson,

; Stephenson, 

. Because appellant’s Rule 37.1 petition was not

in compliance with Rule 37.1(c), it should not have been accepted for filing, and it did not

act to confer jurisdiction on the trial court to consider the merits of the petition.

Ark. 135; Hatton v. State, 

 (per curiam). Where the circuit court lacks jurisdiction,

the appellate court also lacks jurisdiction. Paige, 

; Williamson, 

; Talley

v. State, 

 (per curiam); Gilliland v. State, 

 (per curiam).

       Appeal dismissed; motion moot.




       2
           Attachments are considered a part of the petition. Hatton v. State, 

 (per
curiam). The petition in the trial court far exceeded the ten-page length allowed for petitions
under Rule 37.1(b) when the exhibits to the petition were included in the page-count. The
petition, therefore, could have been dismissed for failure to conform to Rule 37.1(b). See Murry
v. State, 

 (per curiam). Compliance with Rule 37.1(b), however, is not jurisdictional
in nature, and a circuit court may elect to rule on a petition that does not comply with Rule
37.1(b). Moss v. State, 

 (per curiam) (citing Barrow v. State, 

).

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