Russell v. State , 2014 Ark. 530 ( 2014 )

Cite as 2014 Ark. 530
SUPREME COURT OF ARKANSAS
No. CR-14-897
Opinion Delivered December 11, 2014
ROY LEE RUSSELL
APPELLANT PRO SE MOTION FOR DUPLICATION
OF APPELLANT’S BRIEF AT PUBLIC
V. EXPENSE
[DESHA COUNTY CIRCUIT COURT,
STATE OF ARKANSAS NO. 21CR-12-10]
APPELLEE
HONORABLE SAM POPE, JUDGE
REVERSED AND REMANDED;
MOTION MOOT.
PER CURIAM
In 2013, appellant Roy Lee Russell was found guilty by a jury of second-degree battery
and the offense of being a felon in possession of a firearm. He was sentenced as a habitual
offender to 180 months’ imprisonment and fined $10,000 for second-degree battery and
sentenced to 480 months’ imprisonment and fined $15,000 for the possession-of-a-firearm
conviction. The sentences were ordered served consecutively. The Arkansas Court of Appeals
affirmed on June 4, 2014. Russell v. State, 2014 Ark. App. 357.
On June 12, 2014, appellant filed in this court a petition for review.1 The petition was
denied, and the final mandate in the case was issued on September 4, 2014. On September 11,
2014, appellant filed in the trial court a verified pro se petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2013), challenging the judgment. The trial court
denied the petition on the ground that it lacked jurisdiction to consider it. There was no
explanation in the court’s order as to the basis on which the court concluded that it lacked
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Russell v. State, CR-14-531.
Cite as 2014 Ark. 530
jurisdiction to consider the petition, which was timely filed pursuant to Rule 37.2(c). Under Rule
37.2(c), when there was an appeal from a judgment of conviction, a petition for relief must be
filed in the trial court within sixty days of the date that the mandate was issued by the appellate
court. Appellant filed his petition seven days after the mandate was issued.
Appellant has lodged an appeal here from the trial court’s order, and he now asks that
his brief-in-chief be duplicated at public expense. Even though appellant ultimately tendered
the number of copies of the brief required, in the interest of judicial economy, we take this
opportunity to reverse the trial court’s order as there was no reason given by the court for
dismissing the petition. We remand the matter so that the trial court may enter an order setting
out the basis for the dismissal of the petition. Should the court determine that its initial
conclusion that it was without jurisdiction to act on the petition was in error, it should enter an
order in accordance with Rule 37.3(a). When a petition for postconviction relief is denied
without an evidentiary hearing, Rule 37.3(a) requires that the court specify “any parts of the files,
or records that are relied upon to sustain the court’s findings.”
It should be noted that, if the trial court’s order on remand is again adverse to appellant
and appellant desires review of the order by this court, he will be required to perfect an appeal
from the new order in accordance with the prevailing rules of procedure. See Walden v. State,
2014 Ark. 10 (per curiam).
Reversed and remanded; motion moot.
Roy Lee Russell, pro se appellant.
No response.
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