Summary
In Butler, supra, we distinguished those cases in which a petitioner seeks to substitute a new petition from those in which the petitioner desires to file an expanded petition that exceeds the ten-page limitation found in Rule 37.1(b).
Summary of this case from Adams v. StateOpinion
No. CR 05-637.
Opinion delivered September 21, 2006.
1. CRIMINAL PROCEDURE — POSTCONVICTION RELIEF — TRIAL COURT LACKED JURISDICTION OVER PLEADINGS. — Where appellant filed in the trial court a total of three motions for leave to amend appellant's Rule 37.1 petition, the first of which was filed pro se and never addressed by the trial court, and the second pro se motion for leave to amend and the amended pro se petition were filed when the trial court had no jurisdiction, those pleadings were of no effect due to the trial court's lack of jurisdiction over those pleadings; as a result, the trial court erroneously addressed the pro se motion and amended petition in its March 2005 order.
2. APPEAL ERROR — APPELLANT ACTED WITH DILIGENCE TO MOVE CASE FORWARD — APPELLANT DID NOT BENEFIT FROM CONSIDERABLE PASSAGE OF TIME. — Where the period between appellant's original Rule 37.1 petition and the trial court's final order denying the petition amounted to more than two and one-half years, the appellant did not fail to act with diligence during that time; appellant acted with persistence to move the case forward, whether before the supreme court on appeal or before the trial court after each remand, and the State's contention that appellant benefitted from the lapse of time was without merit; for almost two years, appellant was before the supreme court seeking a reversal of the trial court's order regarding untimeliness — a situation that he did not create.
3. APPEAL ERROR — MOTION FOR LEAVE TO AMEND RULE 37 PETITION — LEGITIMATE GROUND OR JUSTIFICATION NOT REQUIRED. — The trial court abused its discretion in denying counsel's motion for leave to amend appellant's Rule 37 petition for failure to state a legitimate ground or justification for filing an amended petition; Ark. R. Crim. P. 37.2(e) contains no such prerequisite, and requires only that a petitioner file the motion for leave to amend before the trial court acts on the original petition; furthermore, appellant's attempt to amend his postconviction petition did not occur on the day of the Rule 37 hearing.
Appeal from Faulkner Circuit Court; David Lee Reynolds, Judge; reversed and remanded.
Craig Lambert, for appellant.
Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
Ellis Charles Butler was convicted by a jury of three counts of rape. The victim was under the age of fourteen. He was sentenced to thirty-two years' imprisonment on each count to be served consecutively, for an aggregate sentence of ninety-six years' imprisonment.
Currently pending before this court is appellant's appeal from the denial of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. In order to reach the merits of this appeal, it is necessary to review the history of this case. A time line of relevant events is as follows.
Butler v. State 339 Ark. 429 5 S.W.3d 466 Butler v. State 349 Ark. 252 82 S.W.3d 152 pro se pro se pro se
1997 Appellant was convicted by a jury of three counts of rape and four counts of violation of a minor in the first degree. Appellant appealed the convictions. 1999 Based on the trial court's refusal to grant a continuance when appellant hired new counsel, this court reversed and remanded the case for a new trial. , , (1999). 2001 On remand, appellant was convicted by a jury of three counts of rape after the other counts against appellant had been severed. Appellant appealed the convictions. 6-13-2002 We affirmed appellant's 2001 convictions. , , (2002). 7-2-2002 This court's clerk issued a mandate remanding the case to the Faulkner County Circuit Court, but the mandate was erroneously dated June 2, 2002. 8-12-2002 Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Appellant and the State subsequently filed numerous responses, replies and motions related to appellant's petition. 8-28-2002 Appellant filed a motion for leave to amend his Rule 37.1 petition.pro se pro se pro se pro se pro se pro se pro se pro se per curiam pro se pro se Butler v. State per curiam pro se per curiam Butler v. State per curiam pro se Butler v. State per curiam pro se pro se
We note that attorney Lambert's representation of appellant was limited to the belated appeal.
The State and the trial court erroneously stated that this pleading was filed on December 2, 2004.
pro se pro se pro se pro se pro se pro se
After filing his pro se amended petition, appellant again sought legal representation by attorney Lambert in early 2005.
We review a circuit court's denial of leave to amend a petition by an abuse-of-discretion standard. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004) (citing Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003)). Abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91,161 S.W.3d 785 (2004); O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004). In other words, we determine whether the trial court's decision was arbitrary or groundless. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).
Initially, a procedural matter must be addressed. Here, appellant filed in the trial court a total of three motions for leave to amend appellant's Rule 37.1 petition. The first motion was filed pro se prior to the belated appeal. The trial court never addressed this motion.
The next motion was filed pro se prior to the issuance of this clerk's mandate that reinvested the trial court with jurisdiction after the belated appeal. On the same day, appellant also filed a pro se amended Rule 37.1 petition. The third motion for leave to file an amended petition was filed by appellant's attorney after jurisdiction over the matter had been returned to the trial court. The trial court granted the former motion, but denied the latter motion.
If a petitioner files a Rule 37.1 petition, including an amended petition, in the trial court before the issuance of a mandate by this court following an appeal, then the petition is of no effect. See e.g., Worthem v. State, 347 Ark. 809, 66 S.W.3d 665 (2002) (per curiam), citing Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). In Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) ( per curiam), we held that a circuit court may not grant relief on a petition for which it does not have authority to consider. The rationale for this decision is that the trial court does not regain jurisdiction over the case until the mandate is issued. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994) (per curiam); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945). A court must have jurisdiction before it can do more with respect to a Rule 37.1 petition than examine it to see if it is timely. Doyle, supra; Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989) ( per curiam).
[1] Because the second pro se motion for leave to amend and the amended pro se petition were filed when the trial court had no jurisdiction over this matter, those pleadings were of no effect due to the trial court's lack of jurisdiction over those pleadings. Thus, the pleadings that remained for the trial court to consider would have been the original pro se petition, the pro se motion for leave to amend the petition filed prior to appeal and the motion for leave to amend filed by appellant's attorney after appeal. As a result, the trial court, in its order of March 21, 2005, erroneously addressed the pro se motion and amended petition filed on December 6, 2004.
Proceeding to the appeal in the instant matter, the State objected to counsel's motion for leave to amend, whereas the State did not object to appellant's pro se motion, now considered of no effect. In its response to counsel's motion, the State complained that appellant should not be allowed to amend his petition as he has had the benefit of the two previous years "to consider the State[']s arguments against his original petition," thereby giving appellant an unfair advantage over the State. The State also claimed that granting counsel's motion would be opening the door to an "unending succession of petitions." Further, the State contended that counsel failed to set forth in his motion "some legitimate ground or justification for the amendment[.]" The trial court denied counsel's motion for leave to amend based on unfair advantage and appellant's failure to cite a legitimate ground or justification for filing an amended petition.
Arguably, appellant would have been the recipient of the same unfair advantage when he filed his 2004 pro se pleadings; yet, the State did not raise this argument in response to those pleadings. It is noteworthy that counsel's motion was filed less than three months after appellant filed his pro se pleadings in December, 2004.
[2] We first consider the considerable passage of time in this matter and any advantage accruing to the benefit of appellant as a result thereof. The period between appellant's original Rule 37.1 petition and the trial court's final order denying the petition amounted to more than two and one-half years. However, we cannot say that appellant failed to act with diligence during that period of time. The history of this matter set out above indicates that appellant acted with persistence in an effort to move the case forward, whether before this court on appeal or before the trial court after each remand. The State's contention that appellant benefitted from the lapse of time in this postconviction matter is without merit. For a period of time of almost two years, appellant was before this court seeking a reversal of the trial court's order regarding untimeliness — a situation that he did not create.
[3] As support for the proposition that appellant is required to state a legitimate ground or justification for filing an amended petition, the State and the trial court cited this court's decision in Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Rowbottom, however, stands for the proposition that when seeking to file a petition in excess of the ten-page limit provided in Ark. R. Crim. P. 37.1(b), a motion must set forth a legitimate ground or justification for an enlarged petition. Here, appellant's counsel did not seek to file an enlarged petition. Rule 37.2(e) contains no such prerequisite, and requires only that a petitioner file the motion for leave to amend before the trial court acts on the original petition. Furthermore, appellant's attempt to amend his postconviction petition did not occur on the day of the Rule 37 hearing. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999).
From the above-stated reasons, we conclude that the trial court abused its discretion in denying counsel's motion for leave to amend appellant's Rule 37.1 petition. Accordingly, we remand this matter to the trial court to issue an order permitting appellant to file an amended Rule 37.1 petition.
Reversed and remanded.