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2017 Ark. 5
SUPREME COURT OF ARKANSAS.
No. CR-16-839
ROBERT EARL WOODS Opinion Delivered January 12, 2017
APPELLANT
PRO SE MOTION FOR EXTENSION
V. OF TIME TO FILE BRIEF
[PULASKI COUNTY CIRCUIT
COURT, NO. 60CR-14-1744]
STATE OF ARKANSAS
APPELLEE
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
On December 8, 2014, appellant Robert Earl Woods pleaded guilty to two counts
of rape. In a March 18, 2015 order, Woods was sentenced to an aggregate sentence of 480
months’ imprisonment in the Arkansas Department of Correction. On May 5, 2015,
Woods filed his first petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1 (2015), alleging various grounds of ineffective assistance of counsel. After
an evidentiary hearing on February 19, 2016, the trial court denied postconviction relief in
an order file-marked on April 19, 2016. Woods subsequently filed a second Rule 37.1
petition on May 23, 2016. The trial court denied the postconviction petition on June 10,
2016, and Woods lodged an appeal with this court, seeking to appeal the denial of relief. 1
Now before us is Woods’s motion for extension of time to file a brief.
1
Woods’s notice of appeal references a final order entered on June 23, 2016. There
is no order entered on that date contained in the record; however, the trial court’s order
denying Woods’s Rule 37.1 petition was file-marked on June 10, 2016.
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When it is clear from the record that the appellant cannot prevail if an appeal of an
order that denied postconviction relief were permitted to go forward, we dismiss the appeal.
Wheeler v. State, 2015 Ark. 233,
463 S.W.3d 678 (per curiam); see also Justus v. State,
2012
Ark. 91. As it is clear from the record that Woods could not prevail on appeal, the appeal
is dismissed. The dismissal of the appeal renders the motion for extension of time to file
brief moot.
Rule 37.2(b) provides that all grounds for relief available to a petitioner under the
Rule must be raised in his or her original petition unless the original petition was denied
without prejudice to filing a second petition. See Hinkston v. State, 2016 Ark. 4, at 4 (per
curiam). If a first petition under the Rule is denied without leave to proceed with a second
petition, a petitioner under the Rule is barred from submitting a subsequent petition. See
Cooper v. State,
2014 Ark. 243 (per curiam). Woods failed to demonstrate that his first Rule
37 petition was denied without prejudice; therefore, a subsequent Rule 37.1 petition would
be prohibited. Hinkston,
2016 Ark. 4. The trial court properly denied Woods’s request for
postconviction relief because Woods attempted to raise claims in an unauthorized second
Rule 37.1 petition.
Additionally, Rule 37.2(c) requires that, when an appellant entered a plea of guilty,
a petition under the Rule must be filed in the trial court within ninety days of the date of
entry of judgment. Ark. R. Crim. P. 37.2(c)(i); see Engstrom v. State, 2016 Ark. 45,
481
S.W.3d 435 (per curiam) (Petitioner’s Rule 37.1 petition referenced a 2012 judgment in his
2015 petition, which was outside the ninety-day period to seek relief under the Rule in that
case.); see also Cook v. State,
2016 Ark. 328 (per curiam); Winnett v. State,
2012 Ark. 404
2
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(per curiam). Consequently, Woods filed his unauthorized second Rule 37.1 petition in
May 2016, over a year after entry of judgment from his plea of guilty—clearly outside the
ninety-day period to seek relief under the Rule, making it likewise untimely. See Banks v.
State,
2015 Ark. 368, at 2–3 (per curiam). The Rule 37.1 petition was not timely filed; as
a result, the trial court did not have the authority to grant the relief sought. See Tolliver v.
State,
2016 Ark. 111 (per curiam). Because it is clear from the record that Woods could not
prevail on appeal, we dismiss the appeal, and the motion is therefore moot.
Appeal dismissed; motion moot.
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