Arkansas

Criminal Procedure

Criminal Procedure

Rule 37.2 – Commencement of Proceedings; pleadings

(a) If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending.
(b) All grounds for relief available to a petitioner under this rule must be raised in his or her original petition unless the petition was denied without prejudice. Any ground not so raised or any ground finally adjudicated or intelligently and understandingly waived in the proceedings which resulted in the conviction or sentence, or in any other proceedings that the petitioner may have taken to secure relief from his or her conviction or sentence, may not be the basis for a subsequent petition. All grounds for postconviction relief from a sentence imposed by a circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised in a petition under this rule.
(c)

(i) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. If a petition is filed before the entry of judgment, the petition shall be treated as filed on the day after the entry of judgment.
(ii) If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate is issued by the appellate court. If a petition is filed after a conviction is affirmed by the appellate court but before the mandate is issued, the petition shall be treated as filed on the day after the mandate is issued.
(iii) In the event an appeal was dismissed, the petition must be filed in the appropriate circuit court within sixty (60) days of the date the appeal was dismissed.
(iv) If the appellate court affirms the conviction but reverses the sentence, the petition must be filed as provided in subsection (ii) within sixty (60) days of a mandate following an appeal taken after resentencing. If no appeal is taken after resentencing, then the petition must be filed as provided in subsection (i) with the appropriate circuit court within ninety (90) days of the entry of the judgment.
(d) The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.
(e) Before the court acts upon a petition filed under this rule, the petition may be amended with leave of the court.
(f) Within twenty (20) days after service of a petition under this rule, the state may file a response thereto with evidence of service on opposing counsel or on the petitioner if he or she is acting pro se.
(g) Inmate filing. For purposes of subsection (c) of this rule, a petition filed pro se by a person confined in a correctional or detention facility that is not timely under the provisions of subsection (c) of this rule shall be deemed filed on the date of its deposit in the facility’s legal mail system if the following conditions are satisfied:

(i) on the date the petition is deposited in the mail, the petitioner is confined in a state correctional facility, a federal correctional facility, or a regional or county detention facility that maintains a system designed for legal mail; and
(ii) the petition is filed pro se; and
(iii) the petition is deposited with first-class postage prepaid, addressed to the clerk of the circuit court; and
(iv) the petition contains a notarized statement by the petitioner as follows:

“I declare under penalty of perjury:

that I am incarcerated in ________________________________ [name of facility];

that the petition is being deposited in the facility’s legal mail system on ______________ [date];

that first-class postage has been prepaid; and

that the petition is being mailed to __________________________ [list the name and address of each person served with a copy of the petition].

_____________________________

(Signature)

[NOTARY]”

The envelope in which the petition is mailed to the circuit clerk shall be retained by the circuit clerk and included in the record of any appeal of the petition.

Ark. R. Crim. P. 37.2

Amended June 25, 2015, effective September 1, 2015.

COMMENT Reporter’s Notes, 2011: In addition to minor, nonsubstantive editorial revisions, the 2011 amendments made two major changes to the period within which a Rule 37 petition must be filed. First, the amendments struck confusing language in subsection (c)(i) pursuant to which the 90-day period for filing a petition commenced from the date sentence was “pronounced” when judgment was not entered within 10 days of the date sentence was pronounced. Second, the amendments adopted the “deemed filed” rule that Arkansas Rule of Appellate Procedure- Criminal 2(b)(1) applies to a premature notice of appeal. Thus, the amendment changes the result announced in Tapp v. State, 324 Ark. 176, 920 S.W.2d 482 (1996) (“[Rule 37 ] does not allow for holding allegations in abeyance for future consideration when the [circuit] court obtains jurisdiction.”) Note that the “deemed filed” rule only applies to appealed cases if the petition is filed with the circuit court after the conviction is affirmed, but before the mandate is issued. If the Rule 37 petition is filed before the appellate court has issued its decision on the appeal, then the circuit court is limited to dismissing the petition as untimely. Reporter’s Notes, 2015 amendment: The 2015 amendment added subsection (g). The amendment is patterned after the federal “mailbox rule,” Fed. R. App. P. 4(c). It is limited to petitions filed by pro se inmates.