Mason v. State , 2014 Ark. 29 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-13-975
Opinion Delivered January 23, 2014
ERIC EUGENE MASON PRO SE MOTION FOR
APPELLANT TRANSCRIPT AND EXTENSION OF
BRIEF TIME [SEBASTIAN COUNTY
v. CIRCUIT COURT, FORT SMITH
DISTRICT, 66CR-11-602]
STATE OF ARKANSAS
APPELLEE HONORABLE STEPHEN TABOR,
JUDGE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2011, appellant Eric Eugene Mason was found guilty by a jury of murder in the
second degree and sentenced as a habitual offender to 540 months’ imprisonment. The
Arkansas Court of Appeals affirmed. Mason v. State, 2013 Ark. App. 48.
Appellant subsequently filed in the trial court a timely petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), seeking to vacate the
judgment. The petition was denied after a hearing, and appellant lodged an appeal in this
court from the order. Appellant timely filed the appellant’s brief after he filed the motion that
is now before us is in which appellant seeks a copy of the transcript lodged in this appeal and
an extension of time to file the brief.
As it is clear from the record that appellant could not prevail on appeal, we dismiss the
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appeal. The motion is moot. An appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward where it is clear that the appellant
could not prevail. Paige v. State, 2013 Ark. 135 (per curiam); Riddell v. State, 2012 Ark. 11
(per curiam); see also Fowler v. State, 2013 Ark. 340 (per curiam).
Appellant’s petition was not in compliance with the Rule in that it was not verified
in accordance with Rule 37.1(c). Rule 37.1(c) requires that the petition be accompanied by
an affidavit that is sworn before a notary or other officer authorized to administer oaths; in
substantially the form noted in that provision; and attesting that the facts stated in the petition
are true, correct, and complete to the best of petitioner’s knowledge and belief. Rule 37.1(d)
requires that the circuit clerk reject an unverified petition and that the circuit court or the
appellate court must dismiss a petition that fails to comply with Rule 37.1(c). Paige, 2013
Ark. 135; see also Williamson v. State, 2012 Ark. 170 (per curiam); Stephenson v. State, 2011
Ark. 506 (per curiam). Appellant’s signature on the petition was notarized, but there was no
verification that the facts stated in the petition were true, correct, and complete as required
by the Rule.1
The verification requirement for a postconviction-relief petition is of substantive
importance to prevent perjury. Martin v. State, 2012 Ark. 312 (per curiam); Williamson, 2012
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One of the exhibits to the Rule 37.1 petition was verified, but the verification clearly
pertained to the exhibit only. The exhibit was a description of discussions between appellant
and his attorney. The verification on the exhibit reads in its entirety, “I further swear that the
description of the incident contained herein, is a true, accurate and impartial description to the
best of my knowledge, information and belief.” The verification of the exhibit does not
substitute for verification of the petition itself.
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Ark. 170; Tucker v. State, 2011 Ark. 543 (per curiam); see Carey v. State, 268 Ark. 332, 596
S.W.2d 688 (1980). We have held that a circuit court lacks jurisdiction to consider
arguments raised in an unverified Rule 37.1 petition. Martin, 2012 Ark. 312; Williamson,
2012 Ark. 170; Stephenson, 2011 Ark. 506. Because appellant’s Rule 37.1 petition was not
in compliance with Rule 37.1(c), it should not have been accepted for filing, and it did not
act to confer jurisdiction on the trial court to consider the merits of the petition.2 Paige, 2013
Ark. 135; Hatton v. State, 2012 Ark. 286 (per curiam). Where the circuit court lacks jurisdiction,
the appellate court also lacks jurisdiction. Paige, 2013 Ark. 135; Williamson, 2012 Ark. 170; Talley
v. State, 2011 Ark. 497 (per curiam); Gilliland v. State, 2011 Ark. 480 (per curiam).
Appeal dismissed; motion moot.
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Attachments are considered a part of the petition. Hatton v. State, 2012 Ark. 286 (per
curiam). The petition in the trial court far exceeded the ten-page length allowed for petitions
under Rule 37.1(b) when the exhibits to the petition were included in the page-count. The
petition, therefore, could have been dismissed for failure to conform to Rule 37.1(b). See Murry
v. State, 2011 Ark. 343 (per curiam). Compliance with Rule 37.1(b), however, is not jurisdictional
in nature, and a circuit court may elect to rule on a petition that does not comply with Rule
37.1(b). Moss v. State, 2013 Ark. 431 (per curiam) (citing Barrow v. State, 2012 Ark. 197).
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