Ford v. State , 2016 Ark. 3 ( 2016 )

Cite as 2016 Ark. 3
SUPREME COURT OF ARKANSAS.
No. CR-15-398
DAMIEN FORD Opinion Delivered January 7, 2016
APPELLANT
PRO SE MOTION FOR EXTENSION OF
V. TIME, MOTION FOR TRANSCRIPT,
AND MOTION TO HOLD IN AVAIL
STATE OF ARKANSAS [MILLER COUNTY CIRCUIT COURT,
APPELLEE NO. 46CR-12-438]
HONORABLE KIRK DOUGLAS
JOHNSON, JUDGE
APPEAL DISMISSED; MOTIONS MOOT.
PER CURIAM
In 2013, appellant Damien Ford was found guilty by a Miller County jury of first-
degree battery, second-degree battery, and aggravated assault for the beating death of his
live-in girlfriend’s twenty-three-month-old son. He was sentenced to an aggregate term of
624 months’ imprisonment. On October 29, 2014, the Arkansas Court of Appeals affirmed.
Ford v. State, 2014 Ark. App. 576. The mandate issued on November 18, 2015.
On January 23, 2015, Ford filed in the trial court a verified, untimely pro se petition
for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015),
arguing eleven claims of ineffective assistance of counsel. The trial court denied relief on
the untimely petition, and an appeal was lodged.
Now before us is Ford’s motion for extension of time, motion for transcript, and
motion to hold in avail. Because it is clear from the record that Ford could not prevail on
appeal, we dismiss the appeal, and the motions are therefore moot. An appeal from an order
Cite as 2016 Ark. 3
that denied a petition for postconviction relief will not be permitted to go forward where it
is clear that the appellant could not prevail. Williams v. State, 2014 Ark. 70 (per curiam).
Under Rule 37.2(c)(ii), if an appeal was taken of the judgment of conviction, a
petition claiming relief under Rule 37.1 must be filed in the trial court within sixty days of
the date the mandate is issued by the appellate court. The mandate in Ford’s direct appeal
was issued on November 18, 2015, meaning a postconviction petition pursuant to the Rule
must have been filed by January 19, 2015.1 As the trial court correctly noted, Ford’s January
23, 2015 petition was untimely. Because it is clear from the record that Ford could not
prevail on appeal, we dismiss the appeal, and the motions are therefore moot.
Appeal dismissed; motions moot.
WYNNE, J., not participating.
1
The actual date for Ford to file his Rule 37 petition would have been January 17,
2015, but that date fell on a Saturday; therefore, the last day to file his Rule 37 petition
would have been the following business day, Monday, January 19, 2015. Ark. R. App. P.–
Crim. 17 (2015).