{
  "id": 5461949,
  "name": "Tyshawn MIMS a/k/a Laeries Hayes v. STATE of Arkansas",
  "name_abbreviation": "Mims v. State",
  "decision_date": "2004-12-09",
  "docket_number": "CR 04-973",
  "first_page": "96",
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          "parenthetical": "holding that after sentencing, a motion to withdraw guilty plea may be treated as one for postconviction relief under Rule 37, regardless of its title"
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          "parenthetical": "holding that after sentencing, a motion to withdraw guilty plea may be treated as one for postconviction relief under Rule 37, regardless of its title"
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  "last_updated": "2023-07-14T21:58:07.617704+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Tyshawn MIMS a/k/a Laeries Hayes v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nThe State of Arkansas has filed a motion to dismiss the appeal of Appellant Tyshawn Mims, a/k/a Laeries Hayes. The motion reflects that Appellant pled guilty to aggravated robbery in the Crittenden County Circuit Court on November 10, 2003, and a judgment and commitment order was entered the same date. On February 17, 2004, Appellant filed a petition under Ark. R. Crim. P. 37 in the trial court. On August 2, the trial court entered an order dismissing the petition as untimely under Ark. R. Crim. P. 37.2(c). Appellant timely filed a notice of appeal.\nThe State now seeks dismissal of the appeal on the ground that the Rule 37 petition filed by Appellant in the trial court was outside the time limits of Rule 37.2(c), which provides that such a postconviction petition must be filed within ninety days of the judgment. Appellant\u2019s petition was filed ninety-nine days after the judgment. The State is correct in asserting that the time limitations imposed in Rule 37 are jurisdictional in nature, such that the circuit court cannot grant relief on an untimely petition. See Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam); Shoemate v. State, 339 Ark. 403, 5 S.W.3d 446 (1999) (per curiam). Because Appellant\u2019s Rule 37 petition was untimely, the State asserts that the circuit court was correct to dismiss the petition and that this court should, in turn, dismiss the appeal.\nIn his pro se response, Appellant states that he filed a timely motion to withdraw his plea, and that he \u201cnever received a response back from the court.\u201d Attached to his response is a file-marked copy of the motion to withdraw plea, dated December 3, 2003. In that motion, Appellant asserted that he pled guilty \u201cunknowledgeably\u201d and that he had received incompetent and ill-advised counseling from his attorney.\nArkansas Rule of Criminal Procedure 26.1(a) provides in pertinent part: \u201cA plea of guilty or nolo contendere may not be withdrawn under this rule after entry ofjudgment.\u201d This court has previously held that a motion to withdraw a plea filed after entry of judgment will be treated as a postconviction motion under Rule 37, where the defendant is in custody. In Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), this court explained:\nIf a sentence has been entered and placed in execution prior to the filing of a motion to withdraw the guilty plea upon which it was based, the motion must be treated as having been made pursuant to Ark. R. Crim. P. 37, and the provisions of that rule govern timeliness of the motion.\nId. at 385, 953 S.W.2d at 884 (citing Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977)). See also McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997) (holding that after sentencing, a motion to withdraw guilty plea may be treated as one for postconviction relief under Rule 37, regardless of its title).\nBased on the foregoing, we grant the State\u2019s motion to dismiss the instant appeal, as Appellant\u2019s petition was not filed within the jurisdictional time limitations of Rule 37.2(c). As for Appellant\u2019s claim that he timely filed a motion to withdraw his guilty plea, which would be treated as a Rule 37 petition if filed after entry ofjudgment, we cannot resolve that issue at this time, as the record on appeal does not contain the motion or any ruling on it. Accordingly, that matter is not now properly before us.\nMotion to dismiss granted.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Appellant, pro se.",
      "Mike Beebe, Att\u2019y Gen., by: David R. Raupp, Sr. Ass\u2019t Att\u2019y Gen.', for appellee."
    ],
    "corrections": "",
    "head_matter": "Tyshawn MIMS a/k/a Laeries Hayes v. STATE of Arkansas\nCR 04-973\n199 S.W.3d 681\nSupreme Court of Arkansas\nOpinion delivered December 9, 2004\nAppellant, pro se.\nMike Beebe, Att\u2019y Gen., by: David R. Raupp, Sr. Ass\u2019t Att\u2019y Gen.', for appellee."
  },
  "file_name": "0096-01",
  "first_page_order": 118,
  "last_page_order": 119
}