Henry v. State

Full title: Bobby Don HENRY, Petitioner v. STATE OF ARKANSAS, Respondent

Court: Supreme Court of Arkansas

Date published: Sep 16, 2010

2010 Ark. 334 (Ark. 2010)

Opinion

CR 98-569

Opinion Delivered September 16, 2010

Pro Se Petition to Reinvest Jurisdiction in the Trial Court to Consider a Petition Pursuant to Arkansas Rule of Criminal Procedure 37.1 [Circuit Court of Logan County, Northern District, CR96-96], Petition Dismissed.

PER CURIAM.

In 1998, petitioner Bobby Don Henry was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999).

Now before this court is petitioner's pro se petition asking that jurisdiction be reinvested in the trial court to consider a petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (1998). As the request does not comport with Rule 37.2(c) (1998), the petition is dismissed.

Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. App'x 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In re Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. App'x 746, 797 S.W.2d 458 (1990). As revised, Rule 37.2(c) provides that where a direct appeal was taken following a conviction, "a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court." Ark. R. Crim. P. 37.2(c) (2010); see Carter v. State, 2010 Ark. 231, ___ S.W.3d ___ (per curiam) (citing Tillman v. State, 2010 Ark. 103 (per curiam)). Before July 1, 1989, petitioners were required to proceed here first, but those petitioners convicted after January 1, 1991, must proceed directly in the trial court. Accordingly, as petitioner Henry was convicted in 1998, he is not obligated to obtain permission from this court before proceeding in the trial court with a petition under the rule, even though his petition if filed in the trial court would not be timely under the revised rule.

Petition dismissed.

DANIELSON, J., not participating.