Opinion
No. CR 11-1191
05-17-2012
MITCHELL SCOTT JOHNSON APPELLANT v. STATE OF ARKANSAS APPELLEE
PRO SE MOTION FOR APPOINTMENT OF COUNSEL [BENTON COUNTY
CIRCUIT COURT, CR 08-274, HON. ROBIN F. GREEN, JUDGE]
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
This court granted appellant Mitchell Scott Johnson's motion for belated appeal of an order by the trial court that denied his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2011). Johnson v. State, 2012 Ark. 47 (per curiam). Appellant has now filed a pro se motion for appointment of counsel. We dismiss the appeal, and the motion is moot.
An appeal from an order that denied a petition for a postconviction remedy will not be permitted to proceed where it is clear that the appellant could not prevail. Perry v. State, 2012 Ark. 98 (per curiam). Appellant indicates in the motion that he has been paroled from the Arkansas Department of Correction. Because he is no longer incarcerated for the judgment at issue in his Rule 37.1 petition, granting relief in this case would have no practical effect. See Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). Our precedent is clear that a person on parole is not eligible to proceed under Rule 37.1. Branning v. State, 2010 Ark. 401. Accordingly, we dismiss the appeal because appellant can no longer proceed under Rule 37.1, even if his arguments had merit, and appellant cannot prevail on appeal. The motion for appointment of counsel is therefore moot.
Appellant is currently incarcerated in a Federal Correctional Institution in Florida on other charges.
Appeal dismissed; motion moot.