#### Orval BURKHART v. STATE of Arkansas

CR 81-9

611 S.W. 2d 500

Supreme Court of Arkansas

Opinion delivered February 9, 1981

John W. Walker, for appellant.

*860 Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.

Richard B. Adkisson, Chief Justice.

This appeal is from a judgment denying relief under Rule 37, Ark. Rules of Crim. Proc., on the ground that the petitioner was not in custody at the time the petition was filed.

In a jury trial on April 26, 1978, appellant, Orval Burkhart, was convicted of first degree assault and his punishment was fixed at $375.00, from which there was no appeal.

The “Scope of the Remedy” for proceedings under Rule 37 is confined to “a prisoner, in custody under sentence of a circuit court ...” The petitioner in this case was not in custody at the time of filing his petition and, therefore, was entitled to no relief. See Hartsell v. State, 254 Ark. 687, 495 S.W. 2d 523 (1973).

Rule 37 is not a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).

Affirmed.