Phillips v. State

Per Curiam.

In 1994, judgment was entered reflecting that Jimmy Lee Phillips had pleaded guilty to three felony offenses and had been sentenced to probation. In May 1996, judgment was entered reflecting that the probation had been revoked and that Phillips had been sentenced as a habitual offender to a term of eighty-four months’ imprisonment for each of the three offenses to be served consecutively. The Court of Appeals affirmed. Phillips v. State, CACR 96-986 (April 16, 1997). The mandate was issued to the circuit clerk on May 6, 1997.

Following the direct appeal, Phillips filed a petition for post-conviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied the petition as untimely because its filing, which occurred on May 5, 1997, preceded the issuance of the mandate by one day. Phillips filed another petition on June 27, 1997. The Circuit Court, finding that Phillips had filed a notice of appeal from the denial of the first petition, concluded that the second petition was also untimely.

It appears that the Circuit Court erred in denying Phillips’s petition as untimely. Phillips filed the petition within sixty days of the appellate mandate, and we recognized the petition’s timeliness when we granted Phillips’s motion to file an amended abstract. Phillips v. State, CR97-940 (February 19, 1998).

In this appeal, however, Phillips does not assign error to the Circuit Court’s conclusion that his petition was untimely. Rather, he contends that his sentence is illegal because it violates the ex post facto and double jeopardy clauses of the Arkansas Constitution and the United States Constitution.

Because the timeliness of Phillips’s petition was the only issue the Circuit Court considered in its opinion, we cannot reach the merits of the arguments that Phillips raises on appeal. Accordingly, we must affirm.

Affirmed.

Brown, J., dissents.