Summary
In Burkhart v. State, 271 Ark. 859, 611 S.W.2d 500 (1981), this court held that the appellant was not entitled to Rule 37 relief where he was not in custody at the time he filed his petition.
Summary of this case from Branning v. StateOpinion
No. CR 81-9.
Opinion delivered February 9, 1981
1. CRIMINAL PROCEDURE — POSTCONVICTION RELIEF — IN-CUSTODY REQUIREMENT. — The scope of the remedy for proceedings under Rule 37, A.R.Crim.P., Ark. Stat. Ann., Vol. 4A (Repl. 1977) is confined to a prisoner, in custody under sentence of a circuit court, thus, a petitioner, who was not in custody at the time of filing his petition, is entitled to no relief. 2. CRIMINAL PROCEDURE — POSTCONVICTION RELIEF — NO SUBSTITUTE FOR APPEAL. — Rule 37, A.R.Crim.P., Ark. Stat. Ann., Vol. 4A (Repl. 1977) is not a substitute for appeal.
Appeal from Polk Circuit Court, Gayle Ford, Judge; affirmed.
John W. Walker, for appellant.
Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
This appeal is from a judgment denying relief under Rule 37, Ark. Rules of Crim. Proc., on the ground that the petitioner was not in custody at the time the petition was filed.
In a jury trial on April 26, 1978, appellant, Orval Burkhart, was convicted of first degree assault and his punishment was fixed at $375.00, from which there was no appeal.
The "Scope of the Remedy" for proceedings under Rule 37 is confined to "a prisoner, in custody under sentence of a circuit court . . ." The petitioner in this case was not in custody at the time of filing his petition and, therefore, was entitled to no relief. See Hartsell v. State, 254 Ark. 687, 495 S.W.2d 523 (1973).
Rule 37 is not a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).
Affirmed.