Matter of Reinstatement of Rule 37

797 S.W.2d 458 (1990)

In the Matter of the REINSTATEMENT OF RULE 37 OF the ARKANSAS RULES OF CRIMINAL PROCEDURE, AS REVISED, AND THE AMENDMENT OF RULE 26.1 AND RULE 36.4 OF the ARKANSAS RULES OF CRIINAL PROCEDURE.

Supreme Court of Arkansas.

October 29, 1990.

PER CURIAM.

Rule 26.1(a) of the Arkansas Rules of Criminal Procedure is amended, effective January 1, 1991, as follows:

Rule 26.1. Plea Withdrawal (a) Prior to pronouncement of sentence, the court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.

Rule 36.4 of the Arkansas Rules of Criminal Procedure is amended to delete Paragraph Two thereof, effective January 1, 1991.

Rule 37 of the Arkansas Rules of Criminal Procedure is reinstated in its revised form, infra, effective January 1, 1991:

RULE 37. OTHER POST-CONVITION PROCEEDINGS AND RELIEF

RULE 37.1. Scope of Remedy

A petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:

(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or

(b) that the court imposing the sentence was without jurisdiction to do so; or

(c) that the sentence was in excess of the maximum sentence authorized by law; or

(d) that the sentence is otherwise subject to collateral attack; may file a verified petition in the court which imposed the sentence, praying that the sentence be vacated or corrected.

(e) The petition will state in concise, nonrepetitive language, without argument, the grounds upon which it is based and shall not exceed ten pages in length. If the petition is handwritten it will be clearly legible, will not exceed thirty lines per page and fifteen words per line, with a left hand margin of at least l'/2 inches and upper and lower margins of at least two inches. Petitions which are not in compliance with this rule will be subject to being stricken.

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 understanding 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 post-conviction 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) 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 was issued by the appellate court. 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.

If 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 the judgment was not entered of record within ten (10) days of the date sentence was pronounced, a petition under this rule must be filed within ninety (90) days of the date sentence was pronounced.

(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.

RULE 37.3. Nature of Proceedings; Summary Disposition; Appointment of Counsel; Evidentiary Hearings; Presence of Petitioner

(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.

(b) If the original petition, or a motion to take an appeal from the court's findings under subsection (a) hereof, should allege that the petitioner is unable to pay the cost of the proceedings, or to employ counsel, and if the court is satisfied that this allegation is true, the circuit court shall appoint counsel for the petitioner for hearing in the circuit court and for an appeal to the Supreme Court if the petitioner desires an appeal.

(c) When a petition is filed in the circuit court and the court does not dispose of the petition under subsection (a) hereof, the court shall cause notice of the filing thereof to be served on the prosecuting attorney and the petitioner's counsel of record at the trial court level; and on the petition the court shall grant prompt hearing with proceedings reported. At any hearing ordered by the court the petitioner shall be present, unless the petitioner waives the right to appear or the trial court determines that the issues to be addressed at the hearing can be fairly resolved without the presence of the petitioner or the trial court directs that the testimony of petitioner be taken by deposition. The rules of evidence shall apply at any hearing. The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.

(d) When an order is rendered on a petition filed under this rule, the circuit court shall promptly mail a copy of the order to the petitioner.

RULE 37.4. Relief.

If the circuit court finds that for any reason the petitioner is entitled to relief, then the circuit court may set aside the original judgment, discharge the petitioner, resentence him or her, grant a new trial, or otherwise correct the sentence, as may appear appropriate in the proceedings.