Frost v. State

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                    SUPREME COURT OF ARKANSAS
                                         No.   CR-14-477

                                                    Opinion Delivered September   4, 2014

JIMMY LEE FROST                                     PRO SE APPELLANT’S MOTIONS
                                APPELLANT           FOR EXTENSION OF TIME TO FILE
                                                    BRIEF-IN-CHIEF AND REPLY BRIEF
V.                                                  [DREW COUNTY CIRCUIT COURT,
                                                    NO. 22CR-07-219]
STATE OF ARKANSAS
                                  APPELLEE          HONORABLE SAM POPE, JUDGE


                                                    APPEAL DISMISSED; MOTIONS
                                                    MOOT.


                                        PER CURIAM


       In 2008, appellant Jimmy Lee Frost was found guilty by a jury of attempted first-degree

murder, committing a terroristic act, and being a felon in possession of a firearm. He was

sentenced as a habitual offender to an aggregate term of 276 months’ imprisonment. The

Arkansas Court of Appeals affirmed. Frost v. State, 

.

       Subsequently, appellant timely filed in the trial court a pro se petition for postconviction

relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008). The petition was denied,

and this court affirmed the order. Frost v. State, 

 (per curiam).

       On March 20, 2014, appellant filed in the trial court a pro se “Motion for Nunc Pro Tunc

Order.” In the motion, he asked the trial court to enter a new judgment-and-commitment

order.1 The trial court denied the motion, finding that the judgment-and-commitment order


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        The motion asking for a new judgment-and-commitment order set out the sentence as
it was imposed in the judgment, but it did not state what modification of that sentence was
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already reflected the exact sentence that appellant’s motion sought to have imposed. Appellant

lodged an appeal from the order in this court and then filed the motions for extensions of time

to file the appellant’s brief-in-chief and his reply brief that are now before us.

       Even though appellant ultimately filed his briefs in a timely manner, rendering the motions

moot, the appeal is dismissed as it is clear from the record that appellant could not prevail if the

appeal were allowed to go forward. The motion for nunc pro tunc order filed by appellant was

a request for postconviction relief, and this court has consistently held that an appeal from the

denial of postconviction relief will not be allowed to proceed when it is evident that the appellant

could not succeed on appeal. Robinson v. State, 

 (per curiam); Johnson v. State, 

, 

 (2005) (per curiam).

       First, if the motion for a nunc pro tunc order was simply a request that the trial court

modify the sentence, a trial court is without jurisdiction to modify, amend, or revise a valid

sentence once it has been put into execution. Moore v. State, 

 (per curiam) (citing

Denson v. State, 

 (per curiam)); Carter v. State, 

 (per curiam). The

sentence in appellant’s case was put into execution when the trial court issued the sentencing order

in 2008. See Denson, 

. Appellant stated no basis on which the trial court was

empowered to modify the sentence in 2014.

       Secondly, to the extent that appellant’s motion was intended to be a collateral attack on the

judgment entered in the case for modification of the sentence imposed, it amounted to an

untimely petition for postconviction relief. See Green v. State, 

 (per curiam). We have



desired.

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held that, regardless of the label placed on a pleading by the petitioner, a pleading that mounts a

collateral attack on a judgment is governed by the provisions of our postconviction rule, Arkansas

Rule of Criminal Procedure 37.1. Green, 

; Holliday v. State, 

 (per curiam);

see Ark. R. Crim. P. 37.2(b) (2013) (“All grounds for postconviction relief from a sentence imposed

by a circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised

in a petition under this rule.”). As a petition under the Rule, the motion for nunc pro tunc order

was not filed within the time limits set by the Rule.

       If a direct appeal is taken from a judgment of conviction and the judgment is affirmed

on appeal, a Rule 37.1 petition must be filed within sixty days of the date the mandate was issued

by the appellate court. Ark. R. Crim. P. 37.2(c); Young v. State, 

 (per curiam). Time

limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, a trial court

lacks jurisdiction to consider the merits of a Rule 37.1 petition. Sims v. State, 

 (per

curiam).

       Appellant filed his motion approximately four years after the mandate issued in his case.

As such, the trial court could have dismissed it for lack of jurisdiction. Sims, 

. Where

the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction. Id.; see also Clark v.

State, 

, 

 (2005) (citing Priest v. Polk, 

, 

(1995)).

       Appeal dismissed; motions moot.

       Jimmy Lee Frost, pro se appellant.

       No response.



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