Opinion
No. CR 89-50
Opinion delivered May 1, 1989
1. CRIMINAL PROCEDURE — POST-CONVICTION RELIEF — PETITION MUST BE FILED WITHIN THREE YEARS OF DATE OF ENTRY OF JUDGMENT. — Ark. R. Crim. P. 37.2(c) provides that a petition claiming relief under the rule must be filed within three years of the date of entry of judgment, unless some ground for relief would render the judgment for conviction absolutely void. 2. CRIMINAL PROCEDURE — POST-CONVICTION RELIEF — THREE YEAR PERIOD IS NOT FIGURED FROM DATE OF AFFIRMANCE ON APPEAL. — The three-year period within which a post-conviction relief petition must be filed begins to run at the date of entry of judgment, not the date of affirmance of the conviction on appeal. 3. CRIMINAL PROCEDURE — POST-CONVICTION RELIEF — INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT IS INSUFFICIENT TO VOID CONVICTION ABSOLUTELY — PETITION DISMISSED. — Where petitioner alleged only that his attorney was ineffective at trial, his petition, which was filed more than three years after the date of entry of his conviction, was dismissed since the allegation was not sufficient to void a judgment absolutely.
Petition to Proceed in Circuit Court of Independence County Pursuant to Criminal Procedure Rule 37; petition dismissed.
Q. Byrum Hurst, for petitioner.
Steve Clark, Att'y Gen., by: Theodore Holder, Asst. Att'y Gen., for respondent.
The petitioner Gerland Lee Gass was found guilty by a jury of the offense of conspiracy to deliver a controlled substance, cocaine, and sentenced to thirty years imprisonment in the Arkansas Department of Correction. A fine of $15,000 was also imposed. The Court of Appeals affirmed. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 396 (1986). He now seeks postconviction relief pursuant to Criminal Procedure Rule 37.
[1-3] Rule 37.2(c) provides that a petition claiming relief under the rule must be filed within three years of the date of entry of judgment, unless some ground for relief would render the judgment for conviction absolutely void. The judgment and commitment in petitioner's case were entered on November 9, 1984. Petitioner contends that the three year period should be figured from the date the Court of Appeals affirmed his conviction, but this is not a correct reading of the rule. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). As petitioner has alleged only that his attorney was ineffective at trial, an allegation which is not sufficient to void a judgment absolutely, the petition is dismissed.
Petition dismissed.