Opinion
CA CR 04-258
Opinion Delivered May 27, 2010
Pro se Motion to Withdraw Petition to Reinvest Jurisdiction in the Trial Court to Consider a Petition for Writ of Error Coram Nobis and to Reinvest Jurisdiction in the Trial Court to Consider a Petition for Postconviction Relief Pursuant to Arkansas Rule of Criminal Procedure 37.1 and Motion to Change Title of Tendered Response to State's Response to Motion to Withdraw Petition [Circuit Court of Pulaski County, CR 2002-3250], Motion to Withdraw Petition Granted in Part and Denied in Part; Motion to Change Title of Response to State's Response to Motion to Withdraw Petition Moot.
On November 6, 2003, judgment was entered reflecting that petitioner Corey Johnson had been found guilty by a jury of two counts of aggravated robbery and sentenced to an aggregate term of 480 months' imprisonment. The Arkansas Court of Appeals affirmed. Johnson v. State, CACR 04-258 (Ark. App. Feb. 2, 2005) (unpublished).
On March 21, 2005, petitioner timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37.1 (2010). The petition was denied May 17, 2005. We dismissed an appeal from the order as it was clear from the record that the appellant could not prevail. Johnson v. State, 366 Ark. 286, 234 S.W.3d 858 (2006) (per curiam).
On April 9, 2010, petitioner filed in this court a pro se petition seeking to have jurisdiction reinvested in the trial court to consider a petition for writ of error coram nobis. Now before us is petitioner's motion to withdraw the petition and to reinvest jurisdiction in the trial court to consider a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). Also before us is a motion that petitioner filed seeking to change the title of a response that he tendered to the response filed by the State to the motion to reflect that he is asking to file a subsequent Rule 37.1 petition in the trial court.
We grant that part of the motion seeking to withdraw the coram nobis petition and deny the request to proceed in the trial court with a Rule 37.1 petition. As the request to proceed with a Rule 37.1 petition is denied, the motion to change the title of the tendered response is moot.
First, the rule does not require a petitioner convicted after January 1, 1991, to seek this court's permission before proceeding under the rule. See Champion v. State, 2010 Ark. 82 (per curiam). Moreover, even if this court had jurisdiction to grant leave to proceed in the trial court with a petition under the rule, all grounds for postconviction relief must be raised in the original petition filed in the trial court, and there may be no subsequent Rule 37.1 petition, unless the first petition was denied without prejudice. Ark. R. Crim. P. 37.2(b) (2010); Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (per curiam). Petitioner has already proceeded under the rule and was denied relief. The record lodged on appeal from the adverse order reflects that the petition was not denied without prejudice; accordingly, he is not entitled to proceed with a second petition.
Rule 37 was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 the Revision of Rule 36 of the Ark. Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam). Rule 37 was reinstated in a revised form on January 1, 1991. In re Reinstatement of Rule 37 of the Ark. Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990) (per curiam). The revised rule does not require petitioners to gain leave of this court before proceeding in the trial court.
Motion to withdraw petition granted in part and denied in part; motion to change title of response to State's response to motion to withdraw petition moot.